NOTE: Cite at least 2 scholarly references published within the last 2 years, and one reference must be the course textbook, Medical Law and Ethics: Chapter 7, 8, 9, & 10 . All sources should be cited using APA format 7th edition.
Primary Task Response: Within the Discussion Board area, write 400–600 words that respond to the following questions with your thoughts, ideas, and comments. This will be the foundation for future discussions by your classmates. Be substantive and clear, and use examples to reinforce your ideas.
With the Health Insurance Portability and Accountability Act (HIPAA) laws, much emphasis has been placed on patients’ privacy rights and the requirements of healthcare organizations (covered entities) to ensure the privacy of protected health information. Answer the following:
1 Introduction to Medical Law, Ethics, and Bioethics 1
Part 1
The Legal Environment 29
2 The Legal System 30
3 Essentials of the Legal System for Health Care Professionals 53
4 Working in Today’s Health Care Environment 71
Part 2
The Health Care Environment 93
5 The Physician–Patient Relationship 94
6 Professional Liability and Medical Malpractice 121
7 Public Duties of the Health Care Professional 153
8 Workplace Law and Ethics 176
9 The Medical Record 207
10 Patient Confidentiality and HIPAA 228
Part 3
Medical Ethics 255
11 Ethical and Bioethical Issues in Medicine 256
12 Ethical Issues Relating to Life 279
13 Death and Dying 305
14 Trends in Health Care 330
Brief Contents
Medical Law
and Ethics
Sixth Edition
Bonnie F. Fremgen, Ph.D.
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To my children, who have always been my inspiration for ethical behavior.
And a special thanks to my husband for his continual support and help.
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v
Contents
Preface vii
A Letter to the Student from the Author ix
How to Interpret Case Citations x
About the Author xi
Reviewers xii
1 Introduction to Medical Law, Ethics,
and Bioethics 1
Why Study Law, Ethics, and Bioethics? 2
Medical Law 6
Ethics 8
Models for Examining Ethical Dilemmas 17
What Ethics is Not 20
Bioethics 20
The Role of Ethics Committees 21
Quality Assurance Programs 22
Medical Etiquette 23
Part 1
The Legal Environment 29
2 The Legal System 30
The Legal System 31
Sources of Law 33
Classification of Laws 36
The Court Systems 44
The Trial Process 45
3 Essentials of the Legal System
for Health Care Professionals 53
Medical Practice Acts 54
Licensure of the Physician 55
Standard of Care 58
Confidentiality 59
Statute of Limitations 60
Good Samaritan Laws 60
Respondeat Superior 62
Scope of Practice 63
Risk Management 64
4 Working in Today’s Health Care
Environment 71
Today’s Health Care Environment 72
Types of Medical Practice 77
The Ethics of Fee Splitting 81
Medical Specialty Boards 81
Health Care Professionals and Allied Health Care
Professionals 84
The Delegation of Duties 87
Part 2
The Health Care Environment 93
5 The Physician–Patient Relationship 94
Physician’s Rights 95
Physician’s Responsibilities 96
Professional Practice Responsibilities 96
Patient’s Rights 104
Advance Directives 106
Rights of Minors 110
Patient’s Responsibilities 110
Role of the Health Care Consumer 116
6 Professional Liability and Medical
Malpractice 121
Professional Negligence and Medical Malpractice 123
The Tort of Negligence 124
Fraud 129
Office of the Inspector General 131
Defense to Malpractice Suits 133
Professional Liability 136
Alternative Dispute Resolution 141
Liability of Other Health Professionals 141
Tort Reform 145
Malpractice Prevention 145
vi Contents
7 Public Duties of the Health Care
Professional 153
Public Health Records and Vital Statistics 154
Controlled Substances Act and Regulations 163
Protection for the Employee and the Environment 168
8 Workplace Law and Ethics 176
Professionalism in the Workplace 177
Discrimination in the Workplace 178
Privacy and the Workplace 179
Cultural Considerations 179
Religious Considerations 181
Effective Hiring Practices 182
Legal and Illegal Interview Questions 183
Federal Regulations Affecting Professionals 184
Equal Employment Opportunity and Employment
Discrimination 185
Employee Health and Safety 192
Compensation and Benefits Regulations 195
Consumer Protection and Collection Practices 199
9 The Medical Record 207
Purpose of the Medical Record 208
Contents of the Medical Record 210
Ownership of the Medical Record 215
Confidentiality and the Medical Record 215
Retention and Storage of Medical Records 217
Electronic Health Records 218
Reporting and Disclosure Requirements 222
Use of the Medical Record in Court 222
10 Patient Confidentiality and HIPAA 228
Confidentiality 229
Privacy Act of 1974, Amended in 1988 231
Health Insurance Portability and Accountability
Act of 1996, Updated in 2013 231
Ethical Concerns with Information Technology
(Informatics) 247
Part 3
Medical Ethics 255
11 Ethical and Bioethical Issues
in Medicine 256
Early History 258
Ethical Standards and Behavior 258
Codes of Ethics 259
Codes of Ethics for Other Medical Professionals 261
Bioethical Issues 261
Ethical Issues and Personal Choice 266
The Ethics of Biomedical Research 266
12 Ethical Issues Relating to Life 279
Fetal Development 280
Assisted or Artificial Conception 281
Contraception 286
Sterilization 287
Abortion 290
Genetic Counseling and Testing 295
Wrongful-Life Suits 298
“Do the Right Thing” 300
13 Death and Dying 305
The Dying Process 306
Legal Definition of Death 306
Stages of Dying 316
Quality-Of-Life Issues 316
Use of Medications 317
Hospice Care 318
Palliative Care 319
Viatical Settlements 319
Advance Directives 320
Choices in Life and Death 321
14 Trends in Health Care 330
Problems in the Current Health Care System 331
New Advances and Improvement in Health Care 335
Health Care Trends and Reform 336
The Ethics of Care 338
American Deaf Culture 338
Blindness and Visual Impairment 341
Life Issues of the Elderly 344
Allocation of Scarce Time and Resources 346
APPENDIX A. Codes of Ethics 351
APPENDIX B. Case Citations 354
Glossary 357
Index 365
vii
The allied health professional has always been an
important member of the medical team. This team
awareness is even more critical in today’s health
care environment, because the physician no longer prac-
tices medicine alone. Therefore, the text discusses medical
law and ethics as it relates to allied health care profession-
als, as well as the physician’s duties and responsibilities.
Medical Law and Ethics is written in straightforward
language that is aimed at the nonlawyer health profes-
sional who must be able to cope with multiple legal and
ethical issues. This text is appropriate for those studying
in a college or university who are working toward careers
in the allied health field in a variety of settings, such as
medical offices, hospitals, clinics, laboratories, rehabilita-
tion facilities, and skilled-nursing facilities. Because most
allied health care professionals work either with or for a
physician, it is important to understand the physician’s
responsibilities and duties to the patient. Therefore, they
are covered in this book. Included are examples of com-
mon legal and ethical issues that affect those working in
the health care field. A wide range of pertinent topics are
discussed, such as the legal system, professional liability
and medical malpractice, public duties of the physician,
the medical record, and ethical and bioethical issues. The
intent is to help health care professionals to better under-
stand our ethical obligation to ourselves, our patients, and
our employers. A new addition to stimulate discussion is
the Critical Thinking Exercise at the end of each chapter.
Many legal cases are sprinkled throughout the text to
demonstrate the history of the law as it pertains to sub-
jects such as patient confidentiality, managed care, fed-
eral regulations affecting the employee, death and dying,
and abortion. In some examples, the cases may seem old,
but because we as a country have a legal system based on
case law, these laws are still pertinent today. A legal icon
(scales of justice) appears in the margin to indicate legal
case citations.
A special feature called Med Tips provides quick in-
formation about law and ethics. These brief scenarios and
hints help to maintain interest in this vital subject. Each
chapter includes glossary terms highlighted in bold on
first reference, extensive end-of-chapter exercises, and one
actual practice case. The appendices include a sample of
codes of ethics that form a basis for current practice and
legal case citations.
This text provides an overview of medical law and
ethics. Practicing health care professionals should know
the legal requirements in their own jurisdictions.
Finally, many educators have offered thoughtful com-
ments as reviewers of this text. I am extremely grateful
that they have shared their time and experience to help
develop this textbook.
Chapter Structure
• Learning Objectives. These include an overview of
the basic knowledge discussed within the chapter and
can be used as a chapter review.
• Key Terms. Important vocabulary terms are listed
alphabetically at the beginning of each chapter and
printed in bold the first time they are defined in
the text.
• Introduction. Each chapter begins with an introduc-
tory statement that reflects the topic of the chapter.
• Review Challenge. A selection of short answer,
matching, and multiple-choice questions are included
to test the student’s knowledge of the chapter material.
• Case Study. The case studies are based on real-life
occurrences and offer practical application of informa-
tion discussed within the chapter. These are included
to stimulate and draw upon the student’s critical-
thinking skills and problem-solving ability.
• Critical Thinking Exercise. These exercises at the
end of each chapter challenge the student to answer
the question “What would you do if . . .” relating
to many current health care and legal dilemmas in
today’s environment.
• Bibliography. These useful resources provide fur-
ther information on the topics included within the
chapter.
Special Features
• Med Tip. Med Tips are placed at strategic points
within the narrative to provide helpful hints and use-
ful information to stimulate the student’s interest in
the topic.
• Legal Case Citations. Discipline-specific cases are
used throughout the text to illustrate the topic under
discussion. The cases reflect the many medical dis-
ciplines, including that of the physician, that come
together in the care of the patient. Although this book
Preface
viii Preface
is not meant to be a law book, the cases cited are
meant to emphasize the importance of the law for the
students.
• Points to Ponder. Thought-provoking questions
give students an opportunity to evaluate how they
might answer some of the tough, medically related
ethical dilemmas encountered in today’s society. These
questions can also be used for critical debate among
students during a class activity.
• Discussion Questions. These end-of-chapter ques-
tions encourage a review of the chapter contents.
• Put It into Practice. These thought-provoking activ-
ities appear at the end of each chapter. They provide
a clinical correlation with the topics discussed in the
chapter and stimulate the student’s own contempla-
tion of legal and ethical issues that are apparent in
everyday life.
• Web Hunt. This end-of-chapter Internet activ-
ity encourages the student to access the multitude of
medical resources available through this medium.
• Appendices. Codes of Ethics are included in Appen-
dix A; the case citations used throughout the book are
listed in Appendix B.
• Additional Examination Review Questions. These
are included in the Instructor’s Resource Manual.
Visit our new Resource Page to accompany Medical
Law and Ethics, 6th Ed. (http://www.pearsonhighered.
com/healthprofessionsresources/) for a collection of
downloadable quizzes, and reference materials.
What’s New in the Sixth
Edition?
The sixth edition of Medical Law and Ethics has been
thoroughly updated throughout. New sections and infor-
mation in this edition include the following:
Chapter 2 New sections on settling out of court and
the trial process
Chapter 3 New information on the two most frequent
types of health care errors: patient falls and medica-
tion errors
Chapter 4 A new section on the delegation of duties
Chapter 5 A new section on the American Hospital
Association “Patient Care Partnership”
Chapter 7 A new section on the opioid crisis
Chapter 8 Information on amendments to the
Americans with Disabilities Act
Chapter 9 A new section on the use of electronic health
records (EHR) and personal health records (PHR)
Chapter 10 New, updated, and expanded information
on the Health Insurance Portability and Accountability
Act (HIPAA) and the Health Information Technology
for Economic and Clinical Health (HITECH) Act, the
privacy of health records, voice recognition technol-
ogy, and facial recognition technology
Chapter 12 A new, uplifting section titled “Do the
Right Thing”
Chapter 14 Three new sections: “American Deaf
Culture,” “Blindness and Visual Impairment,” and
“Life Issues of the Elderly.”
Acknowledgments
This book would not have been possible without the as-
sistance and guidance of many people. I am grateful to
the editorial and production staffs at Pearson Educa-
tion for their skill and patience with this project. I thank,
Marlene Pratt, Acquisitions Editor and Faye Gemmellaro,
Program Manager, for their leadership and guidance with
this project. Their courtesy and thoroughness are greatly
appreciated. And special thanks to Sandy Breuer, my
Developmental Editor.
http://www.pearsonhighered.com/healthprofessionsresources/
http://www.pearsonhighered.com/healthprofessionsresources/
ix
A Letter to the Student from
the Author
There is a lot of information in this book, some that
you will use as soon as you begin your career in
health care. Hopefully, some material and tips will
be usable as soon as you read them. You are working in a
field that is full of people: patients of all ages, hospital and
health care facilities with a variety of caregivers, and nu-
merous fellow employees. If you remember one thing from
this letter to you, remember to care. You and your skills—
and your caring—are the gifts that you give to your pa-
tients. Now, read on and prepare for that Ah-Ha! moment
when you realize that you are doing what you should be
doing.
It’s a natural tendency to read some of the case
examples in this book and think that they must be fictional
as no well-trained health care professional would ever be
so negligent. However, the short ethics cases at the begin-
ning of each chapter are indeed real. Most of these cases
are drawn from the author’s experience, with the excep-
tion of the historical cases.
Throughout the book there are numerous examples
of actual legal cases that usually resulted in suffering for
patients, as well as for physicians and other health care
professionals. The cases discussed are not meant to focus
on particular health care disciplines, nor to exclude any
disciplines. And these cases are not meant to frighten but,
rather, to alert all of us to the potential risks to patients
when health care professionals are not diligent about the
care they provide. Do not memorize the case citations, but
rather try to understand the circumstances and why the
case was included in this book.
I have a great respect for all the disciplines mentioned
in this book. My intent is to prepare students to promote
good patient care, as well as to protect themselves and
their employers from lawsuits.
For a successful start to your study of medical law
and ethics, consider following the ABCs of classroom suc-
cess: Actively participate, Benefit from the experience,
and Commit to learning. It is necessary for you to attend
class to truly benefit from your ethics education. So much
happens in the classroom—especially the interaction
between you and your classmates. The discussion portion
of an ethics class is one of the most important components.
You must be present to contribute. The text serves as an in-
formation source and as the first step in your education—
the dynamics of classroom interaction between you, your
instructor, and the other students is critical for success
in learning.
Actively participate when you attend class. It is nec-
essary to absorb what takes place during the class
session. Listen carefully to what your instructor and
fellow students say. If you don’t share your ideas,
experiences, and questions, then the rest of the class
is losing what you have to offer. The dialogue about
ethics that you have with your instructor and fellow
classmates is a meaningful experience.
Benefit from the experience and ideas of your peers
(classmates). Listen to the opinions of others during class
discussions. Pay particular attention to the opinions that
differ from your own. As a member of the health care
team, you will frequently hear opinions that differ from
your own—both from your coworkers and your patients.
You do not have to change your opinions or beliefs, but
try to keep an open mind to the opinions of others.
Commit to learning by carefully reading and analyzing
the textbook material. Look for new information and also
for discussion points that both agree and disagree with
your own perspective. Take this course seriously so that
it is not a waste of your time. In fact, your ethics class can
be one of the most important classes that you take! Com-
municate what you have learned. Your perspective is
important for others to hear.
The law is dynamic and often is revised as changes take
place in society. An example is the Healthcare Insurance
Portability and Accountability Act (HIPPA). It has had an
impact on health care organizations as well as physicians’
offices. This textbook is not meant to be a study of the law,
but rather to introduce students to the impact that law
and ethics have on their professional lives. Societal ethical
norms also change. Three current ethical concerns— dealing
with the Deaf, dealing with the visually impaired, and life
issues of the elderly—are discussed in the final chapter.
Finally, our goal as teachers is to help our students
learn how to judge themselves and their actions. Because
you won’t have us with you in the workplace, we want
you to be able to evaluate your own actions in light of their
ethical and legal impact on others.
I wish you the very best in your health care career.
—Bonnie F. Fremgen
x
How to Interpret Case Citations
Selected legal cases are used in this textbook to illus-
trate various legal principles. At the end of each case
summary is a citation, such as Moon Lake Convales-
cent Center v. Margolis, 433 N.E.2d 956 (Ill. App. Ct. 1989).
This citation, similar to a street address, tells you where
you can find this case among the many sets of reported
cases (called reporters) in the library. Most case citations
end with information in parentheses, such as (Ill. App. Ct.
1989), which tells you what court (the Illinois Appellate
Court) decided the case and the year (1989) of the decision,
but you do not need that information when you are simply
trying to locate a particular case in the library. The small
v. between the litigants’ names stands for “versus.” For
example, a case citation may consist of
• The italicized case name—usually the name of the
plaintiff and the defendant. In our example, Moon
Lake Convalescent Center (defendant) and Margolis
(plaintiff).
• The name of the reporter(s) where the case is pub-
lished (Northeast Reporter, 2d series).
• The volume number(s) of the reporter(s) where the
case is published (433).
• The page number of the volume where the case begins
(956).
• The year the case was decided (1989).
• For federal Court of Appeals cases, a designation of
the circuit; for federal District Court cases, the state
and judicial district where the court is located; for state
cases, an indication of the state if it is not apparent from
the name of the reporter (Illinois Appellate Court).
Therefore, our example case between Moon Lake
Convalescent Center and Margolis is found in volume 433
of the Northeast Reporter, 2d series, on page 956.
Abbreviations for other reporters (books) are:
A (Atlantic Reporter)
P (Pacific Reporter)
U.S. (United States Reporter)
F.Supp. (Federal Supplement)
F (Federal Reporter)
NE (Northeast Reporter)
NW (Northwest Reporter)
NYS (New York Supplement)
So (Southern Reporter)
SW (Southwestern Reporter)
Most reporters have been published in two or more
series, such as 2d, meaning second series. The student
should not be concerned with memorizing the names of
the reporters. The abbreviations for them are found at the
beginning of most of the legal research publications that
we use. As you do research within your own state, you
will become familiar with the abbreviations that are most
commonly used. Legal research can be done through a law
library or via the Internet from Lexis-Nexis, which is a sub-
scription service used by law firms and libraries.
xi
About the Author
Bonnie F. Fremgen, Ph.D., is a former associate dean of the Allied Health Program
at Robert Morris College and was vice president of a hospital in suburban Chicago.
She has taught medical law and ethics courses as well as clinical and administra-
tive topics. She has broad interests and experiences in the health care field, including
hospitals, nursing homes, and physicians’ offices. She currently has two patents on
a unique circulation-assisting wheelchair. She is the author of Medical Terminology: A
Living Language, also published by Pearson.
Dr. Fremgen holds a nursing degree as well as a master’s in healthcare admin-
istration. She received her Ph.D. from the College of Education at the University of
Illinois. She has performed postdoctoral studies in medical law at Loyola University
Law School in Chicago.
Dr. Fremgen has taught ethics at the University of Notre Dame, South Bend,
Indiana; University of Detroit, Detroit, Michigan; and Saint Xavier University,
Chicago, Illinois.
xii
Reviewers
Sixth Edition Reviewers
Dawn Bell, Rhodes State College, Lima, Ohio
Kenneth Campbell, Chicago State University, Chicago,
Missouri
Liz Cooper, Midwest Technical Institute, Springfield,
Missouri
Abimbola Farinde, Columbia Southern University,
Orange Beach, Alabama
Ann Fiest, Youngstown State University, Girard, Ohio
Angela Fleming, Florida Technical College, Orlando,
Florida
Pamela Giannone, Indian River State College, Fort
Pierce, Florida
Stefanie Goodman, Ivy Tech Community College of
Indiana—Marion, Marion, Indiana
Cheryl Goretti, Quinebaug Valley Community College,
Killingly, Connecticut
Christy Lee, Southwest Virginia Community College,
Richlands, Virginia
Vicki Lemaster, The Southern Baptist Theological
Seminary, Louisville, Kentucky
Christine Malone, Everett Community College, Everett,
Washington
Deborah Rouse, Coastal Pines Technical College,
Waycross, Georgia
Kristiana Routh, Institute of Medical and Business
Careers, Erie, Pennsylvania
Sharon Runyon, Sullivan University, Lexington,
Kentucky
Mary Zulaybar, ASA College, New York, New York
Previous Edition Reviewers
Diana Alagna, Program Director—Medical Assisting,
Stone Academy, Waterbury, Connecticut
Rosana Darang, Bay State College, Boston, Massachusetts
Amy DeVore, Butler County Community College, Butler,
Pennsylvania
Candace Lynn Doyle, Midlands Technical College, West
Columbia, South Carolina
Gail High, YTI Career Institute—Altoona Campus,
Altoona, Pennsylvania
Lisa Huehns, Instructor—Allied Health, Lakeshore
Technical College, Cleveland, Wisconsin
Cecelia Jacob, Southwest Tennessee Community College,
Memphis, Tennessee
Ana M. Linville, University of Texas at Brownsville/
Texas Southmost College, Brownsville, Texas
Michelle Lovings, Missouri College, Brentwood,
Missouri
Sharon Nelson, Program Director—Allied Health,
Columbus Technical College, Columbus, Georgia
Lorraine Papazian-Boyce, Colorado Technical University
Online, Hoffman Estates Illinois
Mary Lou Pfeiffer, Fellow, Senior Faculty in the Honors
College; Adjunct Professor—Religious Studies, Florida
International University, Miami, Florida
Peter Joshua Richards, Coordinator—Health Information
Management/Medical Assisting, Black Hawk College,
Moline, Illinois
Starra Robinson, Program Director and Practicum
Coordinator—Medical Assisting, Stanly Community
College, Locust, North Carolina
Donna M. Rowan, Harford Community College, Bel Air,
Maryland
Andrew Rucks, Adjunct Instructor—Health Care
Ethics, American International College, Springfield,
Massachusetts
George W. Strothmann, Sanford Brown Institute, Fort
Lauderdale, Florida
Lori Warren Woodard, Spencerian College, Louisville,
Kentucky
Mindy Wray, ECPI—Greensboro Campus, Greensboro,
North Carolina
1
Chapter 1
Introduction to Medical Law,
Ethics, and Bioethics
Learning Objectives
After completing this chapter, you will be able to:
1.1 Define the key terms.
1.2 Describe the similarities and differences
between laws and ethics.
1.3 Discuss the reasons for studying law, ethics,
and bioethics.
1.4 Describe how to apply the three decision-
making models discussed in this chapter.
1.5 Explain why ethics is not just about the sin-
cerity of one’s beliefs, emotions, or religious
viewpoints.
Key Terms
Amoral
Applied ethics
Bioethicists
Bioethics
Comparable worth
Compassion
Cost/benefit analysis
Due process
Duty-based ethics
Empathy
Ethics
Fidelity
Indigent
Integrity
Justice-based ethics
Laws
Litigious
Medical ethics
Medical etiquette
Medical practice acts
Morality
Precedent
Principle of autonomy
Principle of beneficence
Principle of justice
Principle of nonmalfeasance
Quality assurance
Rights-based ethics
Sanctity of life
Sexual harassment
Sympathy
Tolerance
Utilitarianism
Virtue-based ethics
The Case of Jeanette M. and The Phone Call
Jeanette, an 80-year-old widow, called her physician early one
morning complaining of shortness of breath. She spoke to the
office receptionist who asked if she was having any other difficulty.
Jeanette said no. The receptionist said she would give the mes-
sage to the doctor.
The doctor’s office was extremely busy that October day
giving out flu shots. The receptionist immediately became busy
answering telephone calls and admitting a long line of patients
waiting for their annual flu shot. The telephone message from
Jeanette was left unnoticed on the front office desk for several
(continued)
2 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
I long to accomplish a great and noble task, but it is my chief duty to accomplish
humble tasks as though they were great and noble. The world is moved along, not only
by the mighty shoves of its heroes, but also by the aggregate of the tiny pushes of each
honest worker.
—Helen Keller
Introduction
Medical professionals encounter health care dilemmas that are not experienced by
the general population. They are faced with individual choices that must, of necessity,
always take into consideration the common good of all patients. Medical–ethical deci-
sions have become increasingly complicated with the advancement of medical science
and technology. The topics of medical law, ethics, and bioethics, while having specific
definitions, are interrelated. One cannot practice medicine in any setting without an
understanding of the legal implications for both the practitioner and the patient. Medi-
cal ethics is an applied ethics, meaning that it is a practical application of moral stan-
dards that are meant to benefit the patient. Therefore, the medical practitioner must
adhere to certain ethical standards and codes of conduct. Bioethics, a branch of applied
ethics, is a field resulting from modern medical advances and research. Many medical
practitioners, patients, and religious organizations believe that advances in bioethics,
such as cloning, require close examination, control, and even legal constraints.
Ethics experts explain that ethical behavior is that which puts the common good
above self-interest. However, this textbook is not here to tell you what to think; it is here
to tell you to think.
One teacher of medical law and ethics clearly stated, “Our primary goal is to teach
students to think independently and become sensitive to the risks and issues that per-
vade the field.” The ultimate goal in teaching this topic is to enable students to under-
stand complex public health care policy from legal and ethical perspectives, regardless
of personal beliefs. We want our students to be able to conduct themselves in a manner
that is ethical, legal, and exemplary. We know you are learning when you begin to
examine both (or all) sides of any issue.
Why Study Law, Ethics, and Bioethics?
Without a moral structure for their actions, people would be free simply to pursue
their own self-interests. In many cases, people would behave in a moral fashion within
the constraints and framework of their culture and religious beliefs. However, upon
hours and was then placed in the physician’s electronic record
with other messages.
Jeanette became so exhausted from her shortness of breath
that she fell asleep. When she awoke in the afternoon she could
not catch her breath. She called her neighbor and just said,
“Help.” Paramedics arrived at Jeanette’s home shortly after the
neighbor called 911 and found Jeanette to be unresponsive. She
was taken to the local emergency room where she was diag-
nosed and treated for pneumonia and congestive heart failure.
The emergency room staff tried to determine who her personal
physician was, but Jeanette had no personal belongings or medi-
cal information with her. She never regained consciousness and
died that evening.
When her neighbor went over to Jeanette’s home that eve-
ning to feed the cat, she noticed the light on the phone’s answer-
ing machine. The doctor had returned Jeanette’s call at 5:00 PM.
She apologized for not calling sooner.
1. Do you believe that this case presents a legal or an ethical
problem or both?
2. In your opinion, is anyone at fault for Jeanette’s death?
3. Is the physician at fault? Is anyone on the physician’s staff
at fault?
4. What could have been done to prevent this problem?
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 3
closer examination, it is clear that in a society where people live and act without the
constraints and limitations imposed by moral standards and laws, a state of hostility
could arise in which only the interests of the strong would prevail. The words justice
and injustice would have little meaning. We all believe we know the difference between
right and wrong. We may firmly believe that even when decisions are difficult to make,
we would intuitively make the right decision. However, there is ample proof in medical
malpractice cases that, in times of stress and crisis, people do not always make the cor-
rect ethical decisions. Because what is illegal is almost always unethical, it is important
to have a basic understanding of the law as it applies to the medical world.
We should also understand that we live in a litigious society in which people have
become excessively inclined to sue health care practitioners. In addition, health care
agencies, hospitals, nursing homes, and manufacturers of medical products and equip-
ment are all at risk of being sued by patients and their families. In fact, in our society
anyone can sue anyone else. Lawsuits take a great toll in terms of stress, time, and
money for all parties involved. While being sued does not indicate guilt, nevertheless
it can affect the reputation of a person or an institution even if that person or institution
is judged to be innocent in a court of law.
Another reason for studying ethics and the law is that people often convince them-
selves that what they are doing is not wrong. For example, plagiarism, which is using
someone else’s words or ideas, may be both unethical and illegal, depending on the
circumstances. It’s understandable that an author who has worked hard to write a book
would not want another author to use his or her written material without permission
and proper credit. In fact, lawsuits have been won when plagiarism is proven to have
occurred. In this case, plagiarism is both illegal and unethical. But what happens when
students have someone else do their work, or if they lift passages from a book and then
claim the words as their own? Is this also illegal and unethical? It may be both.
A student entering the medical field is held to a high standard. Strong ethical val-
ues can begin with something as simple as turning in honest papers. There have been
numerous examples of people lying on their job resume by embellishing duties and
achievements in past jobs, stretching employment dates to cover gaps between jobs,
inflating salaries, and even omitting criminal convictions. Many health care employers
are sensitive to this problem and use consulting firms to perform background checks on
potential employees. These examples illustrate current ethical, and even some illegal,
acts.
Medicine is based on the professional skills of many persons, including physicians,
nurses, physician assistants, medical assistants, radiology technicians, pharmacists, sur-
gical technologists, phlebotomists, reimbursement specialists and coders, pharmacy
technicians, and a multitude of other allied health professionals. The health care team,
composed of these professionals, with the addition of health care administrators, often
Med Tip
We must always remember that our primary duty is to promote good patient care and to
protect our patients from harm.
Med Tip
A basic understanding of law and ethics can help protect you and your employer from
being sued.
4 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
must decide on critical issues relating to patient needs. In some cases, the decisions of
these professionals are at odds with one another. For example, when an obstetrician
withholds resuscitation attempts on a severely handicapped newborn, such as one born
without a brain (anencephalic), he or she may be acting in opposition to the law in many
states and the ethics of many people. Does a nurse have an ethical responsibility to
override this order if he or she believes it to be wrong? Is there a better way to handle
such an ethical dilemma without the patient’s suffering in the process? It is generally
understood that nurses and other allied health care professionals carry out the orders
of their employer/physician. However, as illustrated in the previously mentioned case,
in some situations, confusion arises about what is the right thing to do. In the Jeanette
M. case at the beginning of the chapter, does the physician’s receptionist have any
responsibility for the physician’s delay in returning the patient’s call?
It is generally accepted that some behavior, such as killing, is always wrong. But
even this issue has been in the news when, as Hurricane Katrina roared through New
Orleans in 2005, several critically ill hospital patients who could not be moved, and
would certainly die, were allegedly given a lethal injection of morphine by a doctor and
two nurses. In 2007, a grand jury determined not to indict the physician and cleared
her of all accusations. There have been 194 Katrina-related claims filed by a Louisiana
state agency that manages malpractice lawsuits. There is a concern, resulting from this
case, that prosecutions against hospitals and medical staff could prevent doctors from
helping in times of a disaster. As a result, two state laws were passed in 2008 protecting
medical staff during states of emergency.
Ethics asks difficult questions, such as “How should we act?” and “How should we
live?” The answers to such questions are often subjective and can change according to
circumstances, so it is realistic to ask, “Why study ethics?” The short answer is that, in
spite of the many gray areas of ethics, we are expected to take the right action when con-
fronted with an ethical dilemma. We must consider the consequences of wrongdoing.
We must learn how to think about the ethics of an action and then how to translate those
thoughts into action. So, even if the “right thing” isn’t always clear, we can prepare our
minds to think about an action and to see how the experiences of others can influence
our own actions. The important thing is to be able to think and then take action!
Of course, not all illegal or unethical cases end up with a lawsuit or in a court of law.
However, brief descriptions of actual court cases are sprinkled throughout the text to
illustrate the topics that are discussed in the chapter. These cases alert us to the variety
of situations that have negatively affected the careers of physicians and other health
care professionals as well as the patients who were harmed.
While studying ethics, ask yourself the following questions. Do you know what
you would do in each of the following situations? Do you know whether you are expos-
ing yourself to a lawsuit?
Med Tip
A study of law, ethics, and bioethics can assist the medical professional in making a sound
decision based on reason and logic rather than on emotion or a “gut feeling.”
Med Tip
The reason we want to do the ethical thing is not because we could be named in a lawsuit
but because we would not want poor care for anyone, including our family and ourselves.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 5
• A fellow student says, “Sure, I stole this book from the bookstore, but the tuition
is so high that I figured the school owed me at least one book.” What do you
do? (Chapter 1, “Introduction to Medical Law, Ethics, and Bioethics”)
• An orderly working in a skilled-nursing facility is left alone in the dining room in
charge of a group of elderly residents who are finishing their dinner. One of the
residents does not want to eat but wishes to go back to his own room, which he can-
not find by himself. The orderly has been instructed never to leave patients alone.
Because he cannot leave the dining room full of patients, nor can he allow the one
elderly resident to find his own room, the orderly locks the dining room door. The
elderly resident claims he has been falsely imprisoned. Is he correct? (Chapter 2,
“The Legal System”)
• You are drawing a specimen of blood from Emma Helm, who says that she doesn’t
like having blood drawn. In fact, she tells you that the sight of blood makes her
“queasy.” While you are taking her blood specimen, she faints and hits her head
against the side of a cabinet. Are you liable for Emma’s injury? If you are not liable,
do you know who is? (Chapter 3, “Essentials of the Legal System for Health Care
Professionals”)
• You are a recently hired registered nurse working in the office of an internist. You
have agreed to answer the phone calls in the physician’s office while the reception-
ist is having lunch. A patient calls and says he must have a prescription refill order
for blood pressure medication called in right away to his pharmacy, because he is
leaving town in 30 minutes. He says that he has been on the medication for four
years and that he is a personal friend of the physician. No one except you is in the
office at this time. What do you do? (Chapter 4, “Working in Today’s Health Care
Environment”)
• Terry O’Rourke, a 25-year-old female patient of Dr. Williams, refuses to take her
medication to control diabetes and is not following her dietary plan to control her
disease. After repeated attempts to help this patient, Dr. Williams has decided that
she can no longer provide care for Terry. The office staff has been advised not to
schedule Terry for any more appointments. Is there an ethical or legal concern (or
both) regarding this situation? Is there anything else that either Dr. Williams or
her staff should do to sever the patient relationship with Terry? (Chapter 5, “The
Physician–Patient Relationship”)
• You drop a sterile packet of gauze on the floor. The inside of the packet is still
considered sterile; however, the policy in your office is to re-sterilize anything that
drops on the floor. This is the last sterile packet on the shelf. The chances are very
slight that any infection would result from using the gauze within the packet. What
do you do? (Chapter 6, “Professional Liability and Medical Malpractice”)
• The pharmaceutical salesperson has just brought in a supply of nonprescription
vitamin samples for the physicians in your practice to dispense to their patients.
All the other staff members take samples home for their families’ personal use.
They tell you to do the same, because the samples will become outdated before
the physicians can use all of them. It would save you money. What do you do? Is
it legal? Is it ethical? (Chapter 7, “Public Duties of the Health Care Professional”)
• You feel a slight prick on your sterile glove as you assist Dr. Brown on a minor
surgical procedure. Dr. Brown has a quick temper, and he will become angry if you
delay the surgical procedure while you change gloves. As there was just a slight
prick and the patient’s wound is not infected, will it hurt to wear the gloves during
the procedure? Who is at fault if the patient develops a wound infection? Is this a
legal and/or ethical issue? (Chapter 8, “Workplace Law and Ethics”)
• Demi Daniels calls to ask you to change her diagnosis in her medical record from
R/O (rule out) bladder infection to “bladder infection” because her insurance will
6 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
not pay for an R/O diagnosis. In fact, she tested negative for an infection, but the
physician placed her on antibiotics anyway. What do you do? Is this legal? Is it
ethical? (Chapter 9, “The Medical Record”)
• A physician from another office steps into your office and asks to see the chart of
a neighbor whom he believes may have an infectious disease. He states that the
neighbor is a good friend and that she will not mind if he reviews her medical
chart. Is it legal for you to give the chart to this physician? (Chapter 10, “Patient
Confidentiality and HIPAA”)
• A local hospital was attempting to arrange liver transplants for several patients.
At the same time that a liver became available from an organ donor, it was learned
that a prominent local politician also needed a new liver. The politician was moved
to the head of the line for the available liver. What are the ethics of giving a scarce
liver to a prominent politician ahead of other patients who have been waiting for
some time? What are your thoughts about the statement “People should not be
punished just because they are celebrities”? (Chapter 11, “Ethical and Bioethical
Issues in Medicine”)
• Your neighbor’s 18-year-old unmarried daughter has just given birth to a baby boy.
The neighbor is concerned that neither she nor her daughter can take care of this
baby. She asks you what you can suggest. Is it a violation of ethics to tell her about
the Safe Harbor Law? (Chapter 12, “Ethical Issues Relating to Life”)
• An elderly widow is rushed to the hospital in the middle of the night with a mas-
sive heart attack. She is in need of an emergency treatment that requires the services
of a special surgical team. It takes almost two hours to gather the entire team as they
had all left for the day. This patient has a good chance of recovering if the procedure
is done within six hours after the heart attack occurs. But, as soon as the surgical
team is together and the operating room is ready, another patient, a 45-year-old
woman, is brought into the emergency room in need of the same procedure to save
her life. It is agreed that the 45-year-old woman will receive the treatment first, but
the procedure takes longer than expected. This procedure could not be performed
on the widow because the six-hour “window of opportunity” to do the procedure
had passed. The younger woman lives, and the elderly widow dies the next day.
Is the decision on who will receive the procedure first an ethical or legal one, or
both? (Chapter 13, “Death and Dying”)
• An elderly deaf man walks into a very busy hospital emergency room. The recep-
tionist asks the man what his problem is but, getting no response, hands the man
a form to complete. The receptionist then asks the man if he has any allergies they
should know about when they examine him. He does not understand this question.
Frustrated, he turns around and walks back out the door and gets in a cab to go
home. After a 30-minute cab trip, the driver tells the man he is home but gets no
response. The elderly man had died of a heart attack during the ride. What could/
should have been done to prevent this from happening? (See discussion of Deaf
Culture in Chapter 14, “Trends in Health Care.”)
These situations, and others like them, are addressed throughout this text.
Medical Law
Laws are rules or actions prescribed by an authority such as the federal government and
the court system that have a binding legal force. Medical law addresses legal rights and
obligations that affect patients and protect individual rights, including those of health
care employees. For example, practicing medicine without a license, Medicaid fraud,
and patient rape are violations of medical laws that are always illegal and immoral or
unethical.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 7
It is easy to become confused when studying law and ethics, because, while the two
are different, they often overlap. Some illegal actions may be quite ethical—for example,
exceeding the speed limit when rushing an injured child to the hospital. Of course,
many unethical actions may not be illegal, such as cheating on a test. Law and ethics
both exist in everyday life and, thus, are difficult to separate. An insurance company
denying payment for a life-saving heart transplant on a 70-year-old male is not illegal
in most cases, but it may well be unethical.
There is a greater reliance on laws and the court system, as our society and medi-
cal system have become more complex. In fact, some physicians have been practicing a
form of medicine called “defensive medicine.” This means that they may order unneces-
sary tests and procedures in order to protect themselves from a lawsuit, because then
they can say “I did everything that I could to treat the patient.” This type of preventive
medicine is not only costly but also may put the patient through needless and uncom-
fortable tests and procedures. In some cases, physicians may even avoid ordering tests
or procedures that may carry a risk for the patient because they do not want to take a
chance that a lawsuit may result if the patient outcome is poor.
The law provides a yardstick by which to measure our actions, and it punishes us
when our actions break the laws. Many of the actions punishable by law are consid-
ered morally wrong, such as rape, murder, and theft. The problem with measuring our
actions using only the law, and not considering the ethical aspects of an issue, is that
the law allows many actions that are morally offensive, such as lying and manipulating
people. Laws against actions such as adultery, which most people agree is immoral,
exist, but they are rarely enforced. Some situations involving interpersonal relation-
ships between coworkers, such as taking credit for someone else’s work, are difficult
to address with laws. Other work issues such as lying on job applications, padding
expense accounts, and making unreasonable demands on coworkers are usually han-
dled on the job and are typically not regulated by laws.
A further caution about relying on the law for moral decision-making: the require-
ments of the law often tend to be negative. The standards of morality, on the other hand,
are often seen to be positive. The law forbids us to harm, rob, or defame others; but in
most states it does not require us to help people. Morality would tell us to give aid to
the drowning victim even if the law does not mandate that we do so.
Many people believe that something is wrong, or unethical, only if the law for-
bids it. Conversely, they reason that if the law says it’s all right, then it is also ethical.
Unfortunately, these people believe that until the law tells them otherwise, they have
no ethical responsibility beyond the law. Finally, laws are often reactive and may lag
behind the moral standards of society; slavery is the most obvious example. Sexual
harassment and racial discrimination existed as moral problems long before laws were
enacted to suppress this behavior.
There are a multitude of laws, including criminal and civil statutes (laws enacted
by state and federal legislatures) as well as state medical practice acts that affect health
care professionals. Medical practice acts, established in all 50 states by statute, apply
specifically to the way medicine is practiced in a particular state. These acts define
the meaning of the “practice of medicine” as well as requirements and methods for
Med Tip
In general, an illegal act, or one that is against the law, is always unethical. However, an
unethical act may not be illegal. For instance, a physician traveling on a plane does not have
a legal obligation to come forward when an announcement is made requesting a doctor to
assist with an emergency. But it may be an unethical action if the passenger dies without
the help of an available doctor.
8 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
licensure. They also define what constitutes unprofessional conduct in that particular
state. While the laws vary from state to state, the more common items of unprofessional
conduct include the following:
• Practicing medicine without a license
• Impaired ability to practice medicine because of addiction or mental illness
• Conviction of a felony
• Insufficient record keeping
• Allowing an unlicensed person to practice medicine
• Physical abuse of patients
• Prescribing medication in excessive amounts
As we study law and ethics as they relate to medicine, we will frequently use court
cases to illustrate points. For our purposes it is not necessary to memorize the specifics
of a lawsuit, such as the legal citation, that has been decided in a court of law. But it is
important to keep in mind that unless a decided case is overturned in an appeals court,
it is considered to have established a precedent. This means that the decision of the case
acts as a model for any future cases in which the facts are the same.
Ethics
Medical law addresses rights and obligations that affect patients and protect one’s
rights; ethics also addresses issues that affect patients and their rights. Ethics is the
branch of philosophy related to morals, moral principles, and moral judgments. Ethics
is often about making choices. A more practical explanation from ethics experts tells us
that ethical behavior is that which puts the common good above self-interest. Ethics is
concerned with the obligation of what we “should” or “ought to” do. Morality is the
quality of being virtuous or practicing the right conduct. A person is said to be amoral
if he or she is lacking or indifferent to moral standards. However, the terms ethics and
morality are used interchangeably by many people.
Ethics, as part of philosophy, uses reason and logic to analyze problems and find
solutions. Ethics, in general, is concerned with the actions and practices that are directed
at improving the welfare of people in a moral way. Thus, the study of ethics forces us to
use reason and logic to answer difficult questions concerning life, death, and everything
in between. In modern terms, we use words such as right, wrong, good, and bad when
making ethical judgments. In other cases, people refer to issues or actions that are just
and unjust or fair and unfair.
Medical ethics concerns questions specifically related to the practice of medicine.
This branch of ethics is based on principles regulating the behavior of health care pro-
fessionals, including practitioners such as physicians, nurses, and allied health profes-
sionals. It also applies to patients, relatives, and the community at large.
Ethics is meant to take the past into account, but also to look to the present and
future and ask, “What should I do now?” and “What will be the outcome?” Unfortu-
nately, using moral views based only on those of parents and peers can lead to radical
subjectivism that can make ethical discussion of issues such as euthanasia, abortion,
or cloning difficult, if not impossible. Many of our beliefs are based on emotions—for
Med Tip
Ethics always involves people. This includes patients, health care professionals, other
caregivers, and the general public.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 9
example, we believe that something is wrong if we feel guilt when we do it. While most
health care practitioners, other than physicians, will not be required to make life-and-
death decisions about their patients, it is still important for everyone to develop his or
her own personal value system. Whenever you are involved in an ethical dilemma, you
must analyze actions and their consequences to all concerned parties. Law also does
this by directing actions into “legal” and “illegal” human actions. Ethical issues are not
so easily divided into two categories such as “right” and “wrong.”
As we study ethics, we will also analyze various actions and their effects. When fol-
lowing a moral line of reasoning it is advisable to carefully take apart the issues, restate
them in your own words, and offer an interpretation, and even a criticism, of them.
Theories of Ethics
Basic questions relating to the study of ethics have been the subject of much debate and
analysis, particularly among philosophers. Various philosophers have defined ethics
under several categories, such as utilitarianism, natural rights, or rights-, duty-, justice-,
and virtue-based ethics. A division is often made between teleological and deontological
theories in ethics. A teleological theory asserts that an action is right or wrong depend-
ing on whether it produces good or bad consequences. Utilitarianism is an example of
this theory. Deontological ethical theory asserts that at least some actions are right or
wrong and, thus, we have a duty or obligation to perform them or refrain from perform-
ing them, without consideration of the consequences. Duty-based ethics is an example
of deontological theory. These ethical theories are the basis for many of our country’s
regulations, such as the Occupational Safety and Health Act (OSHA), and the norms
of our society.
Utilitarianism
Utilitarianism is an ethical theory based on the guiding principle of the greatest good
for the greatest number of people. This ethical theory is concerned with the impact of
actions, or final outcomes, on the welfare of society as a whole. In other words, the
“rightness” or “wrongness” of an act is determined solely by its consequences. This
view looks at what would satisfy the interests, wants, and needs of most people. Addi-
tionally, utilitarianism is a consequences-based ethical theory that follows the premise
that the ends (consequences) justify the means (methods for achieving the ends). For
example, in the case of limited financial resources, money would be spent in a way to
benefit the greatest number of people. In this respect, utilitarianism is considered to be
an efficient allocation of resources. In a professional context, a cost/benefit analysis
justifies the means of achieving a goal. In other words, if the benefit of a decision out-
weighs the cost (financial or otherwise) of achieving a goal, then the means to obtain the
goal would be justified. A problem arises when utilitarianism, or cost/benefit analysis,
is used for making ethical decisions, because when a decision benefits most people,
some people will inevitably “fall through the cracks.” This could result in serious con-
sequences if a person is denied treatment and eventually suffers and/or dies because
of this denial.
The nation’s Medicare system, in which persons over the age of 65 and other quali-
fied individuals receive health care benefits, is one example of utilitarianism. Congress
has limited amounts of funds to allocate for medical coverage and uses those funds
Med Tip
Remember that ethics always involves formal consideration of the interests of others in
deciding how to act or behave. In fact, some philosophers believe that almost every deci-
sion to do anything is an ethical decision.
10 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
to cover the elderly and others, such as the disabled, under the federal government
Medicare Act. However, not all people require the benefit. In the case of Medicare, for
example, not all elderly persons need to have medical coverage provided for them by
this act, because some are wealthy and can afford their own coverage. On the other
hand, there are people with low incomes who are not yet 65, and are not indigent
(impoverished) enough to qualify for Medicaid, a state government program, but still
require some type of medical insurance.
Another example of utilitarianism occurs when there is a limited supply of donor
organs. Under a utilitarianism approach, patients with the most immediate need (and
who would benefit the most) would receive the organ. Using this approach for organ
distribution, terminally ill or elderly persons with a limited lifespan would not be the first
to receive a scarce resource such as a new heart. A weakness of the utilitarianism approach
to moral reasoning is that it is impossible to quantify all the variables. Therefore, it can
result in a biased allocation of resources, ignoring the rights of some vulnerable people
such as the young, sick, handicapped, or elderly who lack representation or a voice.
Rights-Based Ethics
Rights-based ethics, or a natural rights ethical theory, places the primary emphasis on
a person’s individual rights. This ethical theory states that rights belong to all people
purely by virtue of their being human. Under our rights-based democracy, all Ameri-
cans have the right to freedom of speech. Employees have the right to due process,
which entitles them to a fair hearing in the case of dismissal from their jobs. In the
previous example of limited donor organs, using a rights-based ethical approach, every
patient needing a donor organ would have the same right to receive the available organ.
The strength of rights-based ethics is a strong attempt to protect the individual
from injury. Laws such as OSHA (Occupational Safety and Health Act) benefit society
as a whole because everyone in the workplace is protected by this act. The downside to
this approach is that there can be incidents of individualistic selfish behavior which is
independent of the outcomes (consequences). For example, unions protect their mem-
bership while excluding the rights of the non-union members of society.
Duty-Based Ethics
Duty-based ethics focuses on performing one’s duty to various people and institu-
tions such as parents, employers, employees, and customers (patients). This line of
moral reasoning follows the belief that our actions should be universal, which means
that everyone would act the same way with the same set of circumstances. For exam-
ple, Americans have some duties, such as to adhere to laws enforced by government
authorities. Duties also arise from our own actions. Therefore, we have a duty to keep
promises, not to lie, and to make reparations to those whom we have harmed. These
reparations include compensation for any damage to another person. An example is
the financial compensation a medical practitioner would make if he or she caused harm
to a patient.
One of the problems encountered with this moral line of reasoning is the mandate
to do things out of a sense of duty regardless of the consequences. In addition, we
may hear conflicting opinions about what our “duty” or responsibility is in particular
circumstances. If our employer asks us to do something that we are sure is wrong or
unethical, we have a duty not to perform the action. (You will come across some mal-
practice cases later in the text that demonstrate this.) However, this violates our duty to
our employer. Most religions have statements that address one’s duty as a member of
that faith or religion. However, many people do not accept their faith’s beliefs concern-
ing issues such as birth control and working on the Sabbath, but do adhere to other
doctrines of their religion. Many people claim that a sense of duty is not enough when
dealing with ethical dilemmas. Rules do not always work. And people from different
cultures may have a different sense of what “duty” means.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 11
Justice-Based Ethics
Justice-based ethics is based on an important moral restraint called “the veil of igno-
rance.” The philosopher John Rawls believed that all social contracts, such as who
should receive a scarce organ donation, should be handled so that no one would know
the gender, age, race, health, number of children, income, wealth, or any other arbitrary
personal information about the recipient. This “veil of ignorance,” meaning we would
not see the recipients of our choices, would allow the decision-makers (such as Congress
or medical experts) to be impartial in their decisions. The so-called “veil of ignorance”
means that no one person is advantaged or disadvantaged. In effect, the “least well
off” person would then have the same chance for scarce resources and justice as the
more educated and wealthy. Rawls, who equated justice with fairness, assumed that
people have a self-interest when forming social contracts such as who will receive medi-
cal care. The justice-based model of ethics infers that every citizen should have equal
access to medical care. For example, children with genetic diseases that would require
large financial resources deserve good care simply as a matter of justice. Proponents of
justice-based ethics believe insurance premium rates and risk should be spread over all
members of the nation such as in a federal single-payer system like Medicare.
Opponents of this theory believe it is unfair for the healthy to subsidize the
unhealthy. Furthermore, under the current gigantic health care system and media cov-
erage it is impossible to have the “veil of ignorance” that is demanded by this ethical
model.
Justice, according to John Rawls (Rawlsian Justice), requires the following:
• Using a democratic and fair approach to others
• Maintaining a fair distribution of benefits and burdens
• Protecting the interests of the weak or powerless
• Allocating resources fairly
Virtue-Based Ethics
A moral virtue is a character trait that is morally valued. The emphasis of virtue-based
ethics is on persons and not necessarily on the decisions or principles that are involved.
Most people agree that virtues are just good habits, such as fairness and honesty. Other
examples of virtues and good character traits are integrity, trust, respect, empathy, gen-
erosity, truthfulness, and the ability to admit mistakes.
Virtue-based ethics, or seeking the “good life,” is our legacy from the philosopher
Aristotle. According to him, the goal of life, for which we all aim, is happiness. He
believed that happiness is founded not solely on what we gain in life, but also on who
we are. For example, the joy of being a medical professional cannot be present without
having the traits or virtues that make one a good physician, nurse, medical assistant,
technologist, or other health care professional. These virtues include perseverance,
integrity, compassion, and trust. Aristotle’s theory is considered inadequate by many
because it does not take into account the consequences of an action, as in utilitarianism,
or the rights of others, as in rights-based ethics. In addition, there are some who believe
that people might take advantage of someone who is too trusting.
Comparing the Five Theories of Ethics
While each of these five ethical theories can have positive outcomes and are useful in
certain circumstances, no one ethical theory or system is perfect.
Ethical standards that relate to the medical profession are set and defined by pro-
fessional organizations such as the American Medical Association. All professional
disciplines, such as nursing and medical assisting, have their own organizations and
standards of guiding ethical codes of conduct. Codes of ethics are discussed more fully
in Chapter 5.
12 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
In general, people believe an action is wrong or unethical if it:
• Causes emotional or physical harm to someone else.
• Goes against one’s deepest beliefs.
• Makes a person feel guilty or uncomfortable about a particular action.
• Breaks the law or traditions of their society.
• Violates the rights of another person.
Because no one ethical theory is perfect, the medical community and the health care
professional use a combination of many theories to determine the correct action to take.
See Table 1.1 for comparison of the strengths and weaknesses of the five ethical
theories.
Principles or Values That Drive Ethical Behavior
Most people have established, throughout their lifetime, their own set of principles or
values that drive their ethical behavior. Benjamin Franklin included in his list of virtues
such things as cleanliness, silence, and industry. In today’s world, we don’t think of
these things as virtues; they are assumed by many people to be a part of everyday life.
Theory Strengths Weaknesses
Utilitarianism
The greatest good for the greatest number 1. Encourages efficiency and productivity
2. Consistent with profit maximization—get-
ting the most value (benefit) for the least
cost
3. Looks beyond the individual to assess
impact of the decision on all who are
affected
1. Virtually impossible to quantify all variables
2. Can result in biased allocations of
resources, especially when some who are
affected lack representation or voice
3. Can result in ignoring the rights of some
people to achieve a utilitarian outcome
Rights-Based Ethics
Individual’s rights to be protected 1. Protects the individual from injury; consis-
tent with rights to freedom and privacy
1. Can encourage individualist, selfish behav-
ior that, if misinterpreted, may result in
anarchy
Duty-Based Ethics
Based on absolute moral rules 1. Absolute rules or principles help us deter-
mine what our duty is toward others
2. Determines what our duty is to one
another
3. A mandate for respect and impartiality
1. Hard to identify who should determine the
rules and principles of moral behavior
2. May tend to treat people as a means to
an end
Justice-Based Ethics
Fair distribution of benefits and burdens 1. A democratic approach
2. Based on a “veil of ignorance”
3. No one person is advantaged or
disadvantaged
1. Some believe it is unfair for the healthy to
subsidize the unhealthy
Virtue-Based Ethics
Based on belief that we have a duty or
responsibility to others
1. Exemplifies the premise that our actions
are universal
2. Virtuous behavior includes perseverance,
courage, integrity, compassion, humility,
and justice
1. Concern that people can be taken advan-
tage of if they are too complacent or
trusting
Table 1.1 Strengths and Weaknesses of Five Ethical Theories
Med Tip
One should not perform an action that might threaten the dignity or welfare of another
individual.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 13
However, in today’s fast-paced health care environment, it is important to slow
down enough to consider some of the most respected virtues. Some of these virtues
include beneficence, empathy, fidelity, gentleness, holistic care, humility, justice, perse-
verance, responsibility, sanctity of life, tolerance, and work.
• Beneficence—The action of helping others and performing actions that would
result in benefit to another person. It cautions all those working in the health care
field to do no harm to anyone. In fact, when we prevent harmful actions from
happening to our patients, we are using this virtue to its fullest extent (Figure 1.1).
• Empathy—An objective awareness of the feelings, emotions, and behavior of
another person. (Also called compassion.)
• Fidelity—Loyalty and faithfulness to others. Fidelity implies that we will perform
our duty. We must use caution when practicing fidelity. A strict adherence to a sense
of duty or loyalty to an employer does not mean that we must perform actions that
are wrong or harmful to our patients.
• Gentleness—A mild, tenderhearted approach to other people. Gentleness goes
beyond compassion because it can exist in the absence of a person’s pain and suffer-
ing. A gentle approach to patient care is considered by patients to be one of the most
welcome virtues. Both men and women have the ability to demonstrate gentleness.
• Holistic care—A comprehensive total care approach to a patient including physical,
emotional, and spiritual.
• Humility—Acquiring an unpretentious and humble manner. Humility is considered
to be the opposite of vanity. It has been said, “honesty and humility are sisters.” This
means that to be truly humble, we must be entirely honest with ourselves. Humil-
ity requires that we recognize our own limits. Vanity and a sense of self-importance
have no place in medicine. When mistakes are made, they must be reported so that
corrections can take place. It takes a humble—and honest—person to admit mistakes.
• Justice—Fairness in all our actions with other people. It means that we must carefully
analyze how to balance our behavior to be fair to all. Justice implies that the same rules
will apply to everyone. This means that as health care workers we cannot demonstrate
favoritism with our patients or our coworkers. The four cardinal virtues are justice,
temperance, prudence, and courage. Of these four, only justice is considered to be an
absolute good. To emphasize this point, the philosopher Immanuel Kant said, “If legal
justice perishes, then it is no longer worthwhile for men to remain alive on this earth.”
• Perseverance—Persisting with a task or idea even against obstacles. This vir-
tue implies a steady determination to get the job done. For example, it takes
FIGURE 1.1 Beneficence: Helping Others
14 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
perseverance to complete one’s education. This is an outstanding virtue for a health
care worker to have. It implies that one will finish the job even if it is difficult.
• Responsibility—A sense of accountability for one’s actions. Responsibility implies
dependability. A sense of responsibility can become weakened when one is faced
with peer pressure. Medical professionals must be able to “answer” or be account-
able for their actions. Taking responsibility is a sign of maturity.
• Sanctity of life—The sacredness of human life. All human beings must be pro-
tected. This means that we may have to become an advocate for people who cannot
speak out for themselves, such as children and many elderly.
• Tolerance—A respect for those whose opinions, practices, race, religion, and
nationality differ from our own. Tolerance requires a fair and objective attitude
toward opinions and practices with which we may or may not agree.
• Work—An effort applied toward some end goal. Work, if performed well, is clearly
a virtue that almost everyone enters into at one time or another. In its broadest
sense, work is part of our everyday existence that includes activities such as study-
ing, child rearing, home maintenance, gardening, hobbies, and religious activities.
The work we do to earn a living can be performed with pride or can be performed
poorly and grudgingly. The most satisfying work involves achieving a goal that we
believe is worthwhile and worthy of our talent.
Interpersonal Ethics
The expectation of employees in the workplace is that they will be treated ethically
with respect, integrity, honesty, fairness, empathy, sympathy, compassion, and loyalty.
Professional health care employees are no different in their expectation of receiving
such treatment.
• Respect implies the ability to consider and honor another person’s beliefs and
opinions. This is a critical quality for a health care worker because patients come
from a variety of racial, ethnic, and religious backgrounds. Coworkers’ opinions
must also be respected, even if contrary to one’s own.
• Integrity is the unwavering adherence to one’s principles. People with integrity are
dedicated to maintaining high standards. For example, integrity means that health
care professionals will wash their hands between each patient contact even when
no one is looking. Dependability, such as being on time for work every day, is a key
component of integrity. Integrity is so important that many professions include a
statement regarding this quality in their code of ethics. For example, the Pharmacy
Technician Code of Ethics states that this health care professional “supports and
promotes honesty and integrity in the profession, which includes a duty to observe
the law, maintain the highest moral and ethical conduct at all times, and uphold
the ethical principles of the profession.”
Med Tip
Not all patients are easy to care for. Many patients do not feel well or may be saddened by
a diagnosis. All patients have a right to our respect and understanding.
Med Tip
Remember to treat each person, whether patient or coworker, the way you wish to be
treated.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 15
Integrity includes:
• Doing the right thing even when nobody is looking
• Showing concern for others
• Using ethically acceptable behavior
• Fairness
• Accepting responsibility for one’s actions
• Honesty is the quality of truthfulness, no matter what the situation. Health care
professionals must have the ability to admit an error and then take corrective steps.
Anyone who carries out orders for a physician has a duty to notify the physician of
any error or discrepancy in those orders.
• Fairness is treating everyone the same. It implies an unbiased impartiality and a
sense of justice. This is a particularly important characteristic for supervisors.
• Empathy is the ability to understand the feelings of others without actually expe-
riencing their pain or distress. Acting in this caring way expresses sensitivity to
patients’ or fellow employees’ feelings.
• Sympathy, on the other hand, is feeling sorry for or pitying someone else. Most peo-
ple, including patients, react better to empathetic listeners than to sympathetic ones.
• Compassion is the ability to have a gentle, caring attitude toward patients and fel-
low employees. Any illness, and in particular a terminal illness, can cause fear and
loneliness in many patients. A compassionate health care professional can help to
ease this fear.
• Loyalty is a sense of faithfulness or commitment to a person or persons. Employ-
ers expect loyalty from their employees. This loyalty should be granted unless the
practice of one’s employer is unethical or illegal. For example, it is never appro-
priate to recommend that a patient seek the services of another physician unless
instructed to do so by the employer. By the same token, employees expect loyalty,
or fair treatment, from their employer.
Additionally, there are specific issues that affect the workplace, such as privacy, due
process, sexual harassment, and comparable worth.
• Privacy, or confidentiality, is the ability to safeguard another person’s confidences or
information (Figure 1.2). Violating patient confidentiality is both a legal and an ethi-
cal issue that carries penalties. Employees have a right to expect the contents of their
personnel records to be held in confidence by their employer. By the same token, it is
inappropriate for employees to discuss the personal life of their physician/employer.
• Due process is the entitlement of employees of the government and public com-
panies to have certain procedures followed when they believe their rights are in
jeopardy. The Fourteenth Amendment acts to prevent the state’s deprivation or
impairment of “any person’s life, liberty, or property without due process of the
law.” The Fifth Amendment also restricts the federal government from depriving
individuals of these rights without due process of the law. In a work environment,
this means that employees of the government and public companies accused of
an offense are entitled to a fair hearing in their defense. Due process is also a pro-
tection guaranteed to health care workers as it relates to their state certification,
Med Tip
Loyalty to one’s employer does not mean hiding an error that has been committed by that
employer or by a physician. If you’re not sure, ask.
16 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
license, or registration to practice. To remove a person’s license to practice his or
her profession is the same as removing a person’s livelihood. Thus, the removal of
this documentation is not to be taken lightly. If there are allegations (accusations)
made claiming that a health care worker, such as a medical technologist, nurse, or
physician, has committed malpractice, then that person’s right to defend himself
or herself and right to due process must be protected. This means that the person
must receive a notice of the charges, an investigation of the allegations, and a hear-
ing if enough evidence is found. If these allegations are proven to be false, then the
individual must not be penalized.
• Sexual harassment, or gender harassment, is defined in the Equal Employment
Opportunity Commission guidelines, which are part of Title VII of the Amended
Civil Rights Act of 1964:
Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when (1) sub-
mission to such conduct is made either explicitly or implicitly a term or con-
dition of an individual’s employment; (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions affect-
ing such individual; or (3) such conduct has the purpose or effect of interfering
with an individual’s work performance or creating an intimidating, hostile, or
offensive working environment.
Both males and females working in the health care field have reported sexual
harassment.
• Comparable worth, also known as pay equity, is a theory that extends equal pay
requirements to all persons who are doing equal work. The principle of fairness
and justice dictates that work of equal value performed by men and women in
the workplace should be rewarded with equal compensation. However, research
demonstrates that there is a wage gap, with some estimates as high as 36 percent,
because of the undervaluation of work performed by women. This results in injus-
tice; equals are not treated equally. Because pay scales are the same for males and
females in many of the health care professions, the situation is not as intense as it
FIGURE 1.2 Confidentiality Regarding Patient’s Identity
© Fotolia
Med Tip
Any type of gender harassment, whether male or female, is seen as one person exerting
power over another.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 17
is in the business world. However, employers and supervisors who are involved
in the hiring process must be committed to providing equal pay for equal work.
While it is important to reflect on the previous concepts, many ethical topics relat-
ing to the medical field fall into categories of common sense. See Table 1.2 for examples
that might fall into the category of a “common sense” approach to ethics.
Models for Examining Ethical Dilemmas
The decision-maker must always be objective when making ethical decisions. It is criti-
cal to examine all the facts of a given situation by gathering as much information or
data as possible. Alternative solutions to the problem must be assessed if they are avail-
able. All sides of every issue should be studied before ethical decisions are made. The
following are three decision-making models that can be helpful when resolving ethical
issues: the Blanchard-Peale three-step ethics model, a seven-step decision model, and
Dr. Bernard Lo’s three-step clinical model.
The Blanchard-Peale Three-Step Ethics Model
Kenneth Blanchard and Norman Vincent Peale in their book The Power of Ethical Man-
agement advise the use of a three-step model when evaluating an ethical dilemma. The
steps are to ask yourself each of the following three questions: Is it legal? Is it balanced?
How does it make me feel?
1. Is it legal? When applying the three-step model, if the situation is clearly illegal,
such as inflicting bodily harm on another, then the matter is also clearly unethical,
and you do not even have to progress to the second question. However, if the action
is not against the law, then you should ask yourself the second question.
2. Is it balanced? This question helps to determine if another person or group of
people is negatively affected by the action. In other words, is there now an imbal-
ance so that one person or group suffers or benefits more than another as a result
of your action? For example, in the case of a scarce resource such as donor organs,
does one group of people have greater access?
3. How does it make me feel? This final question refers to how the action will affect you
emotionally. Would you be hesitant to explain your actions to a loved one? How
would you feel if you saw your name in the paper associated with the action? Can
you face yourself in the mirror?
If you can answer the first two questions with a strong “Yes” and the final question
with a strong “Good,” then the action is likely to be ethical.
For example, student cheating is clearly unethical. By using the three-step ethics
model, we have an even clearer idea of why it is unethical to look at even one answer
on another student’s test. We ask the three questions:
1. Is it legal? Yes, as far as we know there is no law against cheating.
2. Is it balanced? No, it is not. This question is where the model really helps us. One
group or person (in this case the cheater) does have an advantage over another
group or person. In addition, the grades will be skewed for the entire class, because
the person who cheated will receive a higher grade than the one actually earned.
Avoid harming others Keep promises and contracts Be fair
Respect the rights of others Obey the law Reinforce these imperatives in others
Do not lie or cheat Help those in need
Table 1.2 Common Sense Approach to Ethics
18 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
3. How does it make me feel? Remember that we have to live with ourselves. The
philosopher Thomas Aquinas said, “We become what we do,” meaning that if we
lie, we become a liar. Or in this case, if we cheat, we become a cheater.
Analysis is the ability to carefully take apart issues, restate them in your own
words, and offer an interpretation, and even criticism, of them. The following two
models require careful analysis of the problem.
A Seven-Step Decision Model
A number of seven-step decision-making models have been developed. Here is a typi-
cal seven-step model:
1. Determine the facts by asking the following questions:
What do we need to know?
Who is involved in the situation?
Where does the ethical situation take place?
When does it occur?
2. Define the precise ethical issue.
For example, is it a matter of fairness, justice, morality, or individual rights?
3. Identify the major principles, rules, and values.
For example, is this a matter of integrity, quality, respect for others, or profit?
4. Specify the alternatives.
List the major alternative courses of action, including those that represent some
form of compromise. This may be a choice between simply doing or not doing
something.
5. Compare values and alternatives.
Determine if there is one principle or value, or a combination of principles and
values, that is so compelling that the proper alternative is clear.
6. Assess the consequences.
Identify short-term, long-term, positive, and negative consequences for the major
alternatives. The short-term gain or loss is often overridden when long-term con-
sequences are considered. This step often reveals an unanticipated result of major
importance.
7. Make a decision.
The consequences are balanced against one’s primary principles or values. Always
double-check your decision.
This seven-step decision model forces us to closely examine the facts before we
make an ethical decision. This model is helpful when making a decision that has many
subdecision questions to examine: for example, “Who should the physician treat first?”
“Should I look at the exam paper of the person sitting next to me?” or even “What career
choice should I make?” Obviously, some of these decisions require a quick response,
while others, such as selection of a career, require more time and research. This model
can be used to examine all of the end-of-chapter cases in this textbook.
Med Tip
The Blanchard-Peale three-step ethics model is a quick way to check yourself when you
are uncomfortable about an ethical decision. Use it often!
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 19
The Lo Three-Step Clinical Model
Bernard Lo, MD, author of Resolving Ethical Dilemmas: A Guide for Clinicians, has devel-
oped a clinical model for decision-making to ensure that no important considerations
relating to patient care are overlooked. He believes this approach can be used to help
resolve important patient care issues, such as when to proceed with life-sustaining
interventions (e.g., cardiopulmonary resuscitation [CPR] or kidney dialysis). His model
also includes the patient’s preferences and viewpoints:
1. Gather information.
a. If the patient is competent, what are his or her preferences for care?
b. If the patient lacks decision-making capacity, has he or she provided advance
directives for care?
c. If the patient lacks decision-making capacity, who should act as surrogate?
d. What are the views of the health care team?
e. What other issues complicate the case?
2. Clarify the ethical issues.
a. What are the pertinent ethical issues?
b. Determine the ethical guidelines that people are using.
c. What are the reasons for and against the alternative plans of care?
3. Resolve the dilemma.
a. Meet with the health care team and with the patient or surrogate.
b. List the alternatives of care.
c. Negotiate a mutually acceptable decision.
Dr. Lo emphasizes that patients should play an active role in decisions about their
care. Everything should be done to ensure that the patient has been well informed by
providing information in an easy-to-understand way. This model cautions the health
care team to seek the patient’s decision on advance directives. He requires that the entire
health care team—including medical students, nurses, social workers, and all others
who provide direct care for the patient—be involved in the decisions. These caregivers
should voice any moral objections they have to the proposed care. Finally, the patient’s
best interests must always be protected. This model is more commonly used in a hos-
pital or clinic setting.
In Summary
The ethical decision-making models just presented all provide valuable guidance,
which can be summarized as follows. When dealing with ethical dilemmas:
1. Make sure you know and understand the issue/issues.
2. Consider all the facts and alternatives for action.
3. Evaluate all alternatives: ask is it legal, is it fair, and is it balanced?
4. Carefully select the best alternative.
5. Move ahead and act on your decision.
Med Tip
When following a moral line of reasoning, it is always advisable to examine all of the facts
rather than to predetermine what should be done.
20 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
What Ethics is Not
Ethics is not just about how you feel, the sincerity of your beliefs, or your emotions;
nor is it only about religious viewpoints. Feelings such as in the statement “I feel that
capital punishment is wrong” are not sufficient when making an ethical decision. Oth-
ers may feel that capital punishment is right in that it helps to deter crime. All people
have feelings and beliefs. However, ethics must be grounded in reason and fact. In this
respect law and ethics are similar. For example, a statement such as “I feel that cheat-
ing is wrong” doesn’t tell us why you believe it is wrong to cheat. A better statement
reflecting ethics would be, “I think cheating is wrong because it gives one student an
unfair advantage over another student.” That “advantage” may mean that one person
may be hired rather than another simply because the grades were the deciding factor.
The sincerity with which people hold their beliefs is also not an adequate reason
when making an ethical decision. For example, Hitler sincerely believed that he was
right in exterminating more than 6 million Jews. His sincerity did not make him right.
Emotional responses to ethical dilemmas are not sufficient either. Emotions may
affect why people do certain things, such as the woman who kills her husband in a rage
after discovering he had an affair. However, we should not let our emotions dictate
how we make ethical decisions. We may have helplessly watched a loved one die a
slow death from cancer, but our emotions should not cloud the issue of euthanasia and
cause us to kill our ill patients.
Ethics is not just about religious beliefs. Many people associate ideas of right and
wrong with their religious beliefs. While there is often an overlap between ethics and
what a religion teaches as right and wrong, people can hold very strong ethical and
moral beliefs without following any formal religion.
Ultimately, we study ethics to assist us in providing compassionate and competent
care to all our patients.
Bioethics
Bioethics, also known as biomedical ethics, is one branch of applied, or practical, eth-
ics. It refers to moral dilemmas and issues prevalent in today’s society as a result of
advances in medicine and medical research. Bioethics is the study of the ethical prob-
lems arising from scientific advances, especially in biology and medicine. The term bio,
meaning life, combined with ethics relates to the moral conduct of right and wrong in
life and death issues. Ethical problems of the biological sciences, including research on
animals, all fall under the domain of bioethics. Some of the bioethical issues discussed in
this text include the allocation of scarce resources such as transplant organs, beginning-
of-life issues, cloning, harvesting embryos, concerns surrounding death and dying,
experimentation and the use of human subjects, who owns the right to body cells, and
dilemmas in the treatment of catastrophic disease.
Bioethics uses a form of moral analysis to assist in determining the obligations and
responsibilities relating to unique issues in modern health care. Today’s medical care
requires that decision-makers carefully examine facts, identify the moral challenges,
and then look carefully at all alternatives. There are four basic principles that can serve
as guidelines when confronting bioethical dilemmas. They are the principles of auton-
omy, beneficence, nonmalfeasance, and justice.
Med Tip
Our determination of what is ethical or moral can have serious consequences in human
action. If you know it’s wrong, don’t do it!
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 21
The principle of autonomy means that people have the right to make decisions
about their own life. The concept of “informed consent” is included in this principle. It
means that patients must be informed and understand what they are told before they
can provide consent for a treatment. They must be told what the treatment involves,
the risks involved, the chance for success, and the alternatives.
The principle of beneficence, or the principle of doing good, means that we must
not harm patients while we are trying to help them. This principle recognizes that medi-
cal science must do what is best for each individual patient. If there are risks involved,
then the principle of autonomy must be invoked so that decisions are made in conjunc-
tion with the patient’s wishes.
The principle of nonmalfeasance is based on the Latin maxim Primum non nocere,
which means “First, do no harm.” This is a warning to all members of the health care
professions. Nonmalfeasance completes the principle of beneficence because we are
now asking the medical profession to not only do good for the patient, but also to do
no harm in the process. In some cases the risks of a treatment may outweigh the ben-
efits. For example, when a surgeon removes a pregnant woman’s cancerous uterus to
save her life, her unborn child will not live. The principle of nonmalfeasance causes the
medical profession to stop and think before acting.
Finally, the principle of justice warns us that equals must be treated equally. The
same treatments must be given to all patients whether they are rich, poor, educated,
uneducated, able-bodied, or disabled.
These four bioethical principles are guidelines for physicians and health care pro-
fessionals to use when patients are unable to provide their personal wishes. For exam-
ple, there have been cases of “wrongful life” in which a fetus is delivered too soon before
development is complete. Many of these infants, if they survive, may have severe dis-
abilities. Physicians may be requested by parents to “do nothing” to resuscitate or save
their undeveloped child. Issues such as these weigh heavily upon the shoulders of all
medical professionals. Having a set of guidelines, such as the previous four principles,
to follow has helped in some of the decision-making.
Bioethicists, specialists in the field of bioethics, give thought to ethical concerns
that often examine the more abstract dimensions of ethical issues and dilemmas. For
example, they might ask, “What are the social implications of surrogate motherhood?”
Bioethicists are often authors, teachers, and researchers. This branch of ethics poses
difficult, if not impossible, questions for the medical practitioner. Examples of some of
the difficult ethical and bioethical situations that face the health care professional are
listed under “Points to Ponder” at the end of this chapter.
The Role of Ethics Committees
Hospitals, as well as other health care organizations and agencies, have active ethics
committees that examine ethical issues relating to patient care. This type of oversight
committee consists of a variety of members from many health care fields as well as
other disciplines, including physicians, nurses, clergy, psychologists, ethicists, lawyers,
health care administrators, and family and community members. The ethics commit-
tee can serve in an advisory capacity to patients, families, and staff for case review of
difficult ethical issues, especially when there is a lack of agreement as to what is in the
patient’s best interests. They also develop and review health policies and guidelines
regarding ethical issues such as organ transplantation. After examining the facts sur-
rounding the ethical issue, the committee often determines a recommendation based on
predetermined criteria. These criteria might include the severity of the patient’s medical
condition, the age of the patient, and the chance for ultimate recovery.
The ethics committee may examine issues such as when hospitalization or treat-
ment needs to be discontinued for a patient. For example, a hospital ethics committee
22 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
will assist in determining the best action to take for a terminally ill patient who is on a
respirator. In some cases, the committee may be asked to examine if a patient received
the appropriate care.
Ethics committees have tremendous power in today’s health care environment.
Patients are holding their doctors and hospitals to a high standard of care. While it is
necessary for the committee meetings to be confidential in order to protect the patient’s
privacy, nevertheless, there should be a strong set of policies that govern how the meet-
ings are conducted.
Unfortunately in some cases, members of an ethics committee will never see or talk
to the patient whose life and care they are discussing. Mistakes can be made when a
group of people makes a judgment without reviewing all the facts.
FIGURE 1.3 Quality Assurance Committee
Meeting
Quality Assurance Programs
In addition to ethics committees, most hospitals and health care agencies have a qual-
ity assurance (QA) program. These programs were established in the early 1960s as a
response to the increasing demand from the public for accountability in quality medi-
cal care. Quality assurance (QA) is gathering and evaluating information about the
services provided, as well as the results achieved, and comparing this information with
an accepted standard.
Quality assessment measures consist of formal, systematic evaluations of overall
patient care. After the results of the evaluations are compared with standard results,
any deficiencies are noted and recommendations for improvements are made (Figure
1.3). Types of issues that are reviewed by a QA committee include:
• Patient complaints relating to confidentiality.
• Errors in dispensing medications.
• Errors in labeling of laboratory specimens.
• Adverse reactions to treatments and/or medications.
• Inability to obtain venous blood on the first attempt.
• Safety and monitoring practices for radiology and laboratory areas.
• Infection control.
Med Tip
It has been suggested that ethics committees make an effort to have disabled people
represented on their committee either as a member or as a resource person to represent
the viewpoint of the handicapped patient.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 23
Medical Etiquette
There are certain rules of medical etiquette, or standards of professional behavior,
that physicians practice in their relationship and conduct with patients and other
physicians. These are general points of behavior and are not generally considered
to be medical ethics issues. For instance, physicians may expect that their telephone
calls to fellow physicians will be taken promptly and that they will be seen imme-
diately when visiting a physician’s office. This courtesy is extended to physicians
because they are often consulting about patients with other physicians. However,
ethical issues are present when one physician overlooks or “covers up” the medical
deficiencies of another physician.
In addition, physicians should be referred to as “Doctor” unless they request
to be called by their first name. The same courtesy is required for the patient. Many
patients, especially the elderly, prefer to be addressed by their surname (with Ms.,
Miss, Mrs., or Mr.). Many nurses and other allied health professionals prefer to be
addressed in this manner also. There are allied health care professionals who have
decades of experience and do not wish to be addressed by either the patient or physi-
cian by their first name.
Med Tip
The outdated medical courtesy of physicians providing free medical care to their colleagues
is not advisable. If their colleagues were to need further treatment, their insurance coverage
may be in jeopardy because of the initial “free” care.
Med Tip
“All that is necessary for evil to triumph is for good men to do nothing.”—Edmund Burke,
Irish-born British statesman, orator, and author (1729–1797)
Chapter Review
Points to Ponder
1. Should an alcoholic patient, who may die of liver dis-
ease, be eligible for an organ transplant?
2. Should a suicidal patient be allowed to refuse a feed-
ing tube?
3. Should prisoners be eligible to receive expensive
medical therapies for illnesses?
4. Is assisting with suicide ever ethically justified?
5. Should medical personnel suggest other treatment
modes or suggest the patient request a consultation
with another physician?
6. Under what circumstances should you report a col-
league or physician who is physically, psychologi-
cally, or pharmacologically impaired?
1
24 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
Discussion Questions
1. In the case of Jeanette M. at the beginning of the chap-
ter, what additional training for taking telephone mes-
sages should the receptionist have had?
2. Discuss the difference between the terms legal and
moral.
3. Give an example for each of the following: a medical
ethics dilemma, a bioethics situation, and a medical–
legal problem.
4. Determine if the ten questions under “Points to Pon-
der” are ethical or legal issues or both.
5. Describe five ethical situations that you may face in
the profession you intend to follow.
Review Challenge
Short Answer Questions
1. Why do we study law, ethics, and bioethics?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What is the purpose of the Medical Practice Acts?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. What are five theories of ethics?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What are ten virtues that drive ethical behavior?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What are the three steps of the Blanchard-Peale
Model?
a. ___________________________________________
b. ___________________________________________
c. ___________________________________________
6. What is bioethics?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What is the role of an ethics committee?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Discuss what’s wrong with the following rationaliza-
tions for unethical behavior:
a. “Everybody does it!”
b. “It’s not really illegal.”
c. “No one will find out.”
d. “My employer will protect me.”
e. “It’s not wrong to do it just this once.”
7. Is experimentation on human subjects ever justified?
8. When, if ever, should you disclose a patient’s medical
condition to the family?
9. Should parents be allowed to refuse medical treat-
ment, such as chemotherapy, for their child?
10. If you are an employee in a medical office with access
to medical records, should you protect your friend by
telling him that you know that his partner has tested
positive for AIDS?
These questions, and others like them, are addressed
throughout this textbook.
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 25
Matching
Match the responses in column B with the correct term in column A.
Multiple Choice
Select the one best answer to the following statements:
1. A problem that occurs when using a duty-based
approach to ethics is
a. the primary emphasis on a person’s individual
rights.
b. determining the greatest good for the greatest
number of people.
c. the conflicting opinions regarding what our
responsibility is.
d. remembering the three-step model approach to
solving ethical dilemmas.
e. understanding the difference between what is fair
and unfair.
2. Moral issues that occur as a result of modern
medical technology are covered under what specific
discipline?
a. law
b. medicine
c. philosophy
d. bioethics
e. none of the above
3. When trying to solve an ethical dilemma, it is
necessary to
a. do what everyone else is doing.
b. use logic to determine the solution.
c. do what we are told to do by others.
d. base the decision on religious beliefs only.
e. allow our emotions and feelings to guide us.
4. The three-step approach to solving ethical dilemmas
is based on
a. asking ourselves how our decision would make
us feel if we had to explain our actions to a loved
one.
b. asking ourselves if the intended action is legal.
c. asking ourselves if the intended action results in a
balanced decision.
d. a, b, and c.
e. none of the above.
5. A utilitarian approach to solving ethical dilemmas
might be used when
a. allocating a limited supply of donor organs.
b. trying to find a just decision in which everyone
will benefit.
c. finding a decision based on a sense of duty
toward another person.
d. making sure that no one will “fall through the
cracks” and not receive access to care.
e. none of the above.
6. An illegal act is almost always
a. hidden.
b. unethical.
c. performed with the full knowledge of the health
care worker.
d. obvious.
e. all of the above.
COLUMN A
_____ 1. medical etiquette
_____ 2. ethics
_____ 3. applied ethics
_____ 4. laws
_____ 5. medical ethics
_____ 6. beneficence
_____ 7. veil of ignorance
_____ 8. three-step ethics model
_____ 9. R/O
_____ 10. gut feeling
COLUMN B
a. justice-based
b. decision based on emotion
c. binding rules determined by an authority
d. principle of doing good
e. standards of professional behavior
f. practical application of moral standards
g. rule out a diagnosis
h. moral conduct to regulate behavior of medical
professionals
i. branch of philosophy
j. Kenneth Blanchard and Norman Vincent Peale’s
approach to ethics
26 CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics
Put It Into Practice
Talk to someone who is currently working in the medical field that you are working in
or plan to enter. Ask him or her for a definition of medical ethics. Then compare it with
the textbook definition. Does it match? Discuss with that person an ethical dilemma
that he or she has faced and handled.
7. A practical application of ethics is
a. philosophy.
b. the law.
c. illegal.
d. applied ethics.
e. b and d.
8. An employee who is entitled to a fair hearing in the
case of a dismissal from a job is an example of
a. duty-based ethics.
b. utilitarianism.
c. rights-based ethics.
d. justice-based ethics.
e. c and d.
9. Laws that affect the medical profession
a. often overlap with ethics.
b. have a binding force.
c. are always fair to all persons.
d. are determined by a governmental authority.
e. a, b, and d.
10. Modern laws
a. may allow some unethical acts such as lying on
job applications.
b. are interpreted by some people to require no ethi-
cal responsibility beyond what the law requires.
c. are not used as a type of yardstick for group
behavior.
d. a and b only.
e. a, b, and c.
Discussion Cases
1. Analyze the following case using the five theories of ethics
discussed in this chapter.
It has become necessary to ration a vaccine for a conta-
gious disease. There is only enough vaccine available to
cover 75 percent of the U.S. population. It is necessary to
determine an appropriate method for doing this.
a. Utilitarianism:
____________________________________________
____________________________________________
b. Rights-based ethics:
____________________________________________
____________________________________________
c. Duty-based ethics:
____________________________________________
____________________________________________
d. Justice-based ethics
____________________________________________
____________________________________________
e. Virtue-based ethics:
____________________________________________
____________________________________________
2. Using the three-step ethics model (Blanchard-Peale), ana-
lyze the following case:
A student knows that two other students who sit next to
each other in class are cheating on exams because they
talk about it after class. Is this an ethical dilemma? What, if
anything, should the student do?
a. ____________________________________________
b. ____________________________________________
c. ____________________________________________
CHAPTER 1 Introduction to Medical Law, Ethics, and Bioethics 27
Web Hunt
Search the website of the American Society of Law, Medicine, and Ethics (www.aslme
.org). Check on Instant Ethicist. Read and summarize the entry for today.
Critical Thinking Exercise
What would you do if you are in charge of passing patient medications and a fellow
employee asks you for an aspirin from your medication cart for his headache?
Bibliography
Beauchamp, T., and J. Childress. 2012. Principles of biomedical ethics
(7th ed.). New York: Oxford University Press.
Blanchard, K., and N. Peale. 1988. The power of ethical management. New
York: William Morrow.
Boatright, J. 2013. Ethics and the conduct of business. New York: William
Morrow.
Jervis, R. 2010. Katrina case alleges negligence. USA Today (January
11), 1A.
Levine, C. 2011. Taking sides. New York: McGraw-Hill.
Lo, B. 2013. Resolving ethical dilemmas: A guide for clinicians. New York:
Lippincott Williams & Wilkins.
Mappes, T., and D. DeGrazia. 2010. Biomedical ethics. New York:
McGraw-Hill.
Nossiter, A. 2007. Grand jury won’t indict doctor in hurricane deaths.
New York Times (July 25), A10.
Pevtzow, L. 2013. Teaching compassion. Chicago Tribune (March 20),
1/5.
Valinoti, A. 2009. Exam-room rules: What’s in a name? New York Times
(December 15), D5.
Vaughn, L. 2016. Bioethics: Principles, issues, and cases (3rd ed.).
New York: Oxford University Press.
Veatch, R., and A. Haddad. 2014. Case studies in biomedical ethics
(2nd ed.). New York: Oxford University Press.
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29
Chapter 2 The Legal System
Chapter 3 Essentials of the Legal System for Health Care Professionals
Chapter 4 Working in Today’s Health Care Environment
Part 1
The Legal Environment
30
Chapter 2
The Legal System
Learning Objectives
After completing this chapter, you will be able to:
2.1 Define the key terms.
2.2 Discuss why an understanding of the legal
profession is necessary for the health care
professional.
2.3 Describe the sources of law.
2.4 Describe the steps for a bill to become a law.
2.5 Discuss the difference between civil law and
criminal law, explaining the areas covered
by each.
2.6 List six intentional torts and give examples
of each.
2.7 List examples of criminal actions that relate
to the health care worker.
2.8 Discuss the difference between a felony and
a misdemeanor.
2.9 Describe the types of courts in the legal
system.
2.10 Explain the trial process.
2.11 Discuss why an expert witness might be
used during a lawsuit.
Key Terms
Administrative law
Assault
Battery
Beyond a reasonable doubt
Breach
Breach of contract
Case law
Checks and balances
Civil law
Class action lawsuit
Closing arguments
Coding up
Common law
Competent
Consideration
Constitutional law
Contract law
Criminal case
Criminal law
Defamation of character
Defendant
Deposition
Discovery
Embezzlement
Expert witness
Expressed contract
False imprisonment
Felony
Fraudulent
Implied contract
Indictment
Intentional torts
Invasion of privacy
Jurisdiction
Libel
Litigation
Malpractice
Misdemeanor
Municipal ordinances
Negligence
Plaintiff
Pleadings
Preponderance of evidence
Probate court, or estate court
Prosecutor
Regulations
Slander
Stare decisis
Statutes
Subpoena
Subpoena duces tecum
Summary judgment
Tort
Tort law
Unintentional torts
Waive
CHAPTER 2 The Legal System 31
Introduction
Health care professionals must have a good understanding of the legal system for a
variety of reasons. The advanced state of medical technology creates new legal, ethical,
moral, and financial problems for the consumer and the health care practitioner. Today’s
health care consumer demands more of a partnership with the physician and the rest of
the health care team. Patients have become more aware of their legal rights. Court cases
and decisions have had a greater impact than ever on the way health care professionals
practice business in the medical field. It’s important to remember that while laws do
protect an individual’s rights, they are made for the protection of society as a whole.
Laws tell us how we must conduct ourselves during interactions with other people as
well as in business transactions, such as in providing health care services.
The case of Jacob and the Diseased Leg
Jacob is an outstanding quarterback on his high school football
team who has been offered a college scholarship when he gradu-
ates. Unfortunately, Jacob was injured during a late summer prac-
tice just before his senior year. He suffered a compound fracture of
the fibula bone in his lower leg. Because the fracture broke through
his skin, he required a surgical repair to align or set the bone and
close the skin. Dr. M., an orthopedic surgeon, kept Jacob in the
hospital for three days and ordered intravenous antibiotics to be
administered. When he was discharged from the hospital, Jacob
was told to come in for an office visit once a week for six weeks.
At six weeks, Jacob’s parents took him into the surgeon’s
office for his cast removal, and except for a slightly inflamed and
draining area around his stitches, Jacob’s broken bone seemed
to be healing. After his cast was removed, Jacob was told to
wait for a few minutes while the surgeon went across the hall to
check on another patient. Dr. M. removed his gloves, washed
his hands in Jacob’s exam room, and then went across the hall
to examine another patient, Sarah K. The doors between the
exam rooms were left open and Jacob’s parents could see and
hear Dr. M. examine Sarah’s infected leg. They could tell that Dr.
M. did not replace his gloves. He told Sarah that he was glad to
see that her osteomyelitis (a serious bone infection) was almost
better and he told her to come back in another week. Dr. M. then
came back into Jacob’s room, still without gloves, and examined
Jacob’s leg more carefully. He was concerned about the inflam-
mation around the incision site and told the parents to keep the
area clean and dry. He wrote Jacob a prescription for an oral
antibiotic and said he could start to put a little weight on his leg.
When Jacob came back the following week, his leg was grossly
infected with a large abscess. Jacob had to have further surgery
to drain the abscess. The pathology report of tissue specimens
from Jacob’s leg determined that he had developed osteomyeli-
tis. This infection took several months to heal. The delay in his
recovery meant that Jacob was unable to play football that fall
and lost his chance at a college scholarship. Jacob’s parents
asked Dr. M. to provide them with the results of the tissue test.
They then sued Dr. M. for negligence.
1. What obvious mistake did Dr. M. make?
2. Did Jacob or his parents contribute in any way to his
condition?
3. What could all of the involved parties have done to
prevent this situation from occurring?
The Legal System
The U.S. legal system has one federal legal system and 50 separate and unique state sys-
tems. For example, the federal government administers the U.S. Tax Court and the U.S.
Bankruptcy Court. The state governments administer courts such as traffic and small
claims courts. State governments also administer medical licensing acts. The majority
of criminal cases originate in state courts. Most states have at least three court levels:
trial, appellate, and supreme. The jurisdiction of a particular court refers to the subject
Med Tip
Every effort should be made to provide a quality of care for patients that will not only help
them recover their health but will also avoid lawsuits.
32 PART 1 The Legal Environment
matter of a particular case, territory the case occurred in, or people that a court has
lawful authority over. An appellate court has the authority to review a decision made
by a lower court, such as a trial court.
The court system is only one part of the government, however. In establishing a
federal government, the U.S. Constitution separated the government’s power into three
branches: legislative, executive, and judicial. Each branch complements the others but
does not take on the power of the other branches. The separation between the three
branches created a system of checks and balances and was designed by the framers of
the Constitution so that no one branch could have more power than another branch.
See Figure 2.1 for an illustration of the branches of the U.S. government.
The legislative branch, referred to as Congress, is the lawmaking body. It is com-
posed of members of the Senate and House of Representatives and is responsible for
passing legislation into law. The executive branch (consisting of the President of the
United States, his or her cabinet, and various advisers) administers and enforces the law.
The judicial branch (consisting of judges and the federal courts, including the Supreme
Court) interprets the laws. Congress has the power to make laws, but the President has
the power to veto these laws, although Congress can then override the veto with a two-
thirds majority vote. The President can appoint all federal and Supreme Court judges,
but Congress must confirm appointments. The judicial branch can review legislation
and interpret the laws passed by Congress and the President, but the President must
enforce the law. Congress can, in many instances, pass new laws to replace laws that
are deemed unconstitutional by a judicial decision. See Figure 2.2 for an illustration of
the separation of powers.
The states all have their own constitutions, which in many respects mirror the
U.S. Constitution. The state constitutions likewise establish legislative, executive, and
judicial branches within each state. See Figure 2.3 for an illustration of the federal court
system.
FIGURE 2.1 Branches of
U.S. Government
Legislative Branch
Executive Branch
Judicial Branch
President
The Cabinet
Other Agencies
The Constitution
The
Supreme
Court
Congress
100 Members, 2 from each state
435 Members, elected from
states according to population
House of Representatives
Circuit Courts of Appeals
District Courts
Senate
Med Tip
Federal law is administered the same in all states. However, individual states may vary on
how they interpret and implement laws relegated to the states. Therefore, interpretation of
legal acts for allied health professionals varies greatly from state to state.
CHAPTER 2 The Legal System 33
FIGURE 2.2 Separation of
Powers in the Federal Legal
System
Proposes amendments to
overrule judicial decisions.
Impeaches and removes
judges.
Establishes the number of
judges.
Establishes lower courts.
Judicial
Supreme Court
(lifetime term)
Lower federal courts
Vetoes bills.
Calls special sessions of Congress.
Controls patronage (power to
control appointments to office).
Appoints federal judges.
Pardons or reprieves
federal offenders.
Overrules president’s vetoes.
Refuses to approve treaties.
Refuses to confirm federal official
appointments.
Impeaches and removes the
president.
Refuses to appropriate money
for executive program.
Legislative
House of Representatives
(2-year term)
Senate
(6-year term)
Executive
President
(4-year term)
Cabinet
May declare laws or acts by executive
branch unconstitutional.May declare laws unconstitutional.
FIGURE 2.3 Federal Court Structure
U.S. Supreme
Court
Court of
International
Trade
District Courts
(96)
Administrative
Agencies
Tax Court
Merit Systems
Protection Board
Court of Claims
Court of
Appeals for
the Federal
Circuit
Circuit
Courts of
Appeals
(12)
Sources of Law
All laws—those enforceable rules prescribed by a government authority—must come
from somewhere. Let’s say that you are pulled over and given a ticket for driving 70 miles
an hour, when the speed limit is only 55. You obviously broke a law. But where did that
law come from? Did someone just walk down the highway and put up signs saying how
fast he or she thought you should drive? Of course not. The speed limit, like all other laws,
originated from a government body authorized to establish rules. These rules fall into
four different categories: constitutional, statutory, regulatory, and common (or case) law.
Constitutional Law
The U.S. Constitution is the country’s highest judicial authority. It sets up the govern-
ment, defines the government’s power to act, and sets limits on the government’s power
(e.g., individual rights such as the right to free speech). It takes precedence over all state
laws and the state constitutions.
34 PART 1 The Legal Environment
Constitutional law derives from both the U.S. Constitution and the constitutions
of the individual states. It is the body of laws that define the role, powers, and structure
of entities that fall within the three branches of government—legislative, executive, and
judicial—as defined by the U.S. Constitution and the state constitutions.
It is important to realize that the Constitution only addresses the relationship
between individuals and their government; it does not apply to the relationship
between private entities, whether they are individuals or businesses.
Statutory and Regulatory Law
Statutes are laws passed by legislative bodies, either Congress or a state legislature.
This is called statutory or legislative law. Congress and the state legislatures have the
authority to pass laws because in setting up our form of government, the Constitution
authorized the legislature to make laws. Statutory law consists of ever-changing rules
and regulations created by the U.S. Congress, state legislatures, local governments, or
constitutional lawmakers. These statutes are the inviolable rights, privileges, or immu-
nities secured and protected for each citizen by the U.S. Constitution. They include
written codes, bills, and acts (also called regulations).
Legislatures sometimes authorize agencies to make laws. The legislature does this
by passing a statute, called enabling legislation. This statute creates an agency and
authorizes it to pass laws regarding specific issues. For instance, the Food and Drug
Administration is a federal agency that can pass rules governing the sale of food and
drugs. The rules or laws made by agencies are called regulations.
Statutes begin as bills submitted by legislators at the state or federal level. The first
step is taken when the bill is introduced in either of the two legislative houses, Senate
or House of Representatives. If the bill does not “die” (fails to be acted upon) in one of
the houses, it then goes to a committee for discussion and consideration. (Note that 85
percent of all bills die before they reach a committee.) The committee studies the bill
and may hold a hearing to gain more facts about the bill. This first committee issues
a report, including a recommendation to either pass or fail the bill. The bill then goes
back to the house (Senate or House of Representatives) in which it originated, where
a discussion and vote takes place. After the bill passes in one house, it becomes an act.
The act is then sent to the other house, where it goes through the same steps as it did as
a bill. The act can always be amended by the second house, which results in its being
returned to the originating house for a discussion and vote on the amendment. There
may be a reconciliation conference between members of both houses to settle any dis-
crepancies between the two versions.
If the second house passes the act (or if both houses pass the reconciled version),
then the heads of each house—Speaker of the House of Representatives and the Presi-
dent Pro Tem of the Senate (the Vice President of the United States, in the case of a
federal act)—sign it. The act is then sent to the chief executive, who is, in the case of a
federal act, the president, and for a state act, the governor. The act becomes a law if it
is signed by the chief executive or if it is not vetoed within 10 days. If vetoed, the bill
goes back for an override vote. A presidential veto can be overridden by a two-thirds
majority of both houses of Congress. After this complicated process, the act is referred
to as a public law or statute.
Med Tip
A public law is designated by the initials P.L., the five or six digits that follow indicate the
Congress that passed the law (the first two or three digits) and which piece of legislation
the law was in that Congress. For example, a new law is issued with a public law number,
such as PL 94-104, which indicates that it was the 94th Congress that passed the law (the
first two or three digits) and the 104th piece of legislation in that Congress.
CHAPTER 2 The Legal System 35
Laws that are passed by city governments are called municipal ordinances. Federal
laws have precedence over state laws; state laws have precedence over city or municipal
laws. In other words, a state or city may make laws and regulations more stringent than
the federal law, but cannot make laws less stringent.
Common Law (or Case Law)
The final source of law is common law. Unlike the laws established by legislative bodies
(statutory laws), common law is made by judges when they apply previous court deci-
sions to current cases. This means it is based on the judicial interpretation of previous
laws, leading to a common understanding of how a law should be interpreted. Thus,
common law, as established from a court decision, may explain or interpret the other
sources of law. Because common law evolves on a case-by-case basis, it is also called
case law. For instance, the way a case is argued and settled and any written statements
from the judge at the conclusion of the case may explain or elaborate on what a provi-
sion of the constitution, a statute, or a regulation means. In addition to interpreting
the other sources of law, common law defines other legal rights and obligations. For
example, a doctor’s obligation to use reasonable care in treating a patient (i.e., not to
commit medical malpractice) is a legal obligation created from actual court decisions.
Common law (or case law) based on decisions made by judges was a legal concept
originally established by English courts in the twelfth century and brought to America
by the early colonists. The only state that doesn’t follow English common law is the state
of Louisiana, which bases its law on early French law. Common law is based on prec-
edent, the ruling in an early case that is then applied to subsequent cases when the facts
are the same. Each time common, or judge-made, law is applied, it must be reviewed by
the court to determine if it is still justified and relevant or has not been overturned by
existing laws. As a result of this constant review of common law, many laws have been
changed (or updated) over the years. The ultimate arbiter, or interpreter, of common law
is the state supreme court or, if the law involves a federal question, the U.S. Supreme
Court. The legal principle of stare decisis, or “let the decision stand,” comes to us from
the precedence of basing decisions on similar past case decisions.
Many old case decisions, such as the ones described in the case law example, still
influence today’s medical practitioner.
Example of Case Law
In the 1616 case of Weaver v. Ward, Weaver sued Ward after Ward’s musket accidentally fired dur-
ing a military exercise, wounding Weaver. Weaver won, and Ward had to pay damages for Weav-
er’s injury. The court concluded that Weaver did not have to show that Ward intended to injure him.
Even though the injury was an accident, Ward was still liable (Weaver v. Ward, 80 Eng. Rep. 284,
1616). In Lambert v. Bessey, decided in 1681, the court stated, “In all civil acts the law doth not
so much regard the intent of the actor, as the loss and damage of the party suffering” (Lambert v.
Bessey, 83 Eng. Rep. 220, 1681). Cases such as these established the precedent that the person
who hurt another person by unavoidable accident or self-defense was required to make good the
damage inflicted.
Med Tip
Taken literally, stare decisis means to abide by, or adhere to, decided cases.
36 PART 1 The Legal Environment
Even though the facts of these cases are antiquated, we can still see their relevance
when a patient suffers an injury while undergoing medical treatment. In the late nine-
teenth century, the courts recognized that there should be liability for a pure accident.
Therefore, a person (defendant) may be liable for an injury to another person (plaintiff),
even if the defendant did not intend to hurt the plaintiff.
Classification of Laws
Laws are classified as private and public. Private (or civil) laws can be divided into six
categories: tort, contract, property, inheritance, family, and corporate law. Only tort
and contract law are discussed here, as they most often affect the medical professional.
Public law can be divided into four categories: criminal, administrative, constitutional,
and international law. This chapter discusses criminal and administrative law.
Civil (Private) Law
Civil law concerns relationships either between individuals or between individuals
and the government. It involves all the law that is not criminal law, although the same
conduct may violate criminal and civil law. For instance, murder is a crime that the
government prosecutes in order to punish the defendant by inflicting a prison term or
even death, while the surviving family members can sue the person in a civil suit for
wrongful death and receive compensation for their loss. Civil law cases generally carry
a monetary damage or award as compensation for harm or injury. An individual can sue
another person, a business, or the government. Some civil law cases include divorce,
child custody, auto accidents, slander, libel, and trespassing.
Civil law includes tort law and contract law. Tort law covers private or civil wrong-
ful acts that result in harm to another person or that person’s property. A tort can result
in money damages having to be paid. Contract law includes enforceable promises and
agreements between two or more persons to do, or not do, a particular action. Health
care employees are most frequently involved in cases of civil law, in particular, tort and
contract law. Most medical malpractice lawsuits fall within the category of the civil law
of torts. See Figure 2.4 for the components of civil law.
FIGURE 2.4 Components of Civil Law
Civil
law
Tort
Non-
intentional
tort
Intentional
tort
Defamation
of character
Slander Libel
Assault
Battery
Fraud
Invasion of
privacy
Negligence
Malpractice
False
imprisonment
Contract Property Inheritance Family Corporate
CHAPTER 2 The Legal System 37
INTENTIONAL TORTS Intentional torts occur when a person has been intentionally
or deliberately injured by another. Intentional torts include assault, battery, false impris-
onment, defamation of character, fraud, and invasion of privacy. Table 2.1 provides a
description and example of each.
ASSAULT No health care professional would knowingly perform a tort against a
patient or any other person. However, even a trained professional can make a mistake
if he or she is not aware of what constitutes a “wrongful act” under these torts. For
example, for a tort of assault, it is sufficient for the patient to just fear that he or she
will be hurt or has an “imminent apprehension of bodily harm.” So, if a health care
In a civil law case there must be a preponderance of evidence, meaning the fact of
the issue is more probable than not, in order to receive a determination of guilty. This
means that it is more likely than not that the incident did occur.
Tort Description Example
Assault Threat bodily harm to another; there does not have to
be actual touching (battery) for an assault to take place
Threatening to harm a patient or to perform a proce-
dure without the informed consent (permission) of the
patient
Battery Actual bodily harm to another person without permis-
sion; referred to as unlawful touching or touching with-
out consent
Performing surgery or a procedure without the
informed consent (permission) of the patient
False imprisonment Violation of the personal liberty of another person
through unlawful restraint
Refusing to allow a competent patient to leave an
office, hospital, or medical facility when he or she
requests to leave
Defamation of character Damage caused to a person’s reputation through spo-
ken or written word
Making a negative statement about another physician’s
ability
Fraud Deceitful practice that deprives another person of his or
her rights
Promising a miracle cure
Invasion of privacy Unauthorized publicity of information about a patient Allowing personal information, such as test results for
HIV, to become public without the patient’s permission
Table 2.1 Intentional Torts
Med Tip
In many cases, civil law matters are handled and settled outside of the courtroom.
Med Tip
Under tort law, if a wrongful act has been committed against another person and there is
no harm done, then there is no tort. However, in medical practice, every wrongful act or
error must be reported, because patients may experience a resulting harm sometime later
than when the tort occurs.
Tort Law
A tort is a civil injury, or wrongful act, that is committed against another person or
property, resulting in harm, and is compensated by money damages. To sue for a tort, a
patient must have suffered a mental or physical injury that was caused by the physician
or the physician’s employee. A tort case is tried before either a judge or a jury. In certain
cases in which a jury trial has been waived, a “bench trial” may take place in which the
trial is held before a judge sitting without a jury. Torts can be either intentional or unin-
tentional, and the patient may recover monetary damages. In order to recover damages
there must be “fault” on the part of the defendant.
38 PART 1 The Legal Environment
professional threatens a patient by saying, “If you don’t lie still, we will have to hold
you down,” and the patient believes this will cause him or her injury or harm, this is
considered a tort of assault. Shaking of one’s fist in a patient’s face in a threatening
manner can also be considered assault.
BATTERY The tort of battery requires bodily harm or unlawful touching (touching
without the consent of the patient) and not just the fear of harm. No procedure, includ-
ing drawing blood for a laboratory test, can be performed without the patient’s knowl-
edge and consent. When a patient offers an arm or rolls up a sleeve for the phlebotomist,
this constitutes a form of consent (implied) for the procedure. When a surgeon has a
patient sign an informed consent for a specific surgical procedure, then it is considered
battery if he or she does anything to the patient that is not listed on the informed con-
sent form. (This does not include emergency life-saving procedures such as CPR.) For
example, if, during surgery for a hysterectomy (removal of the uterus), a surgeon notes
that the patient’s appendix is inflamed, he or she cannot remove that appendix unless
this procedure was stated on the consent form. The surgeon would have to complete
the surgery for the hysterectomy and then, after the patient is awake, discuss the need
for surgical removal of the appendix. Often assault and battery occur together.
Other examples of battery include hitting a patient or forcing competent patients to
do anything against their wishes, such as having therapy or getting out of bed.
FALSE IMPRISONMENT False imprisonment in health care occurs when a medical
professional, or a person hired by that professional, takes an action to confine a patient.
There have been cases in which patients were not allowed to leave a room or building
when they wished, and had no reasonable means of escape, resulting in a tort of false
imprisonment in which the patient (plaintiff) won the case. This occurred in a Texas case
in which the patient, who was assessed as being competent, was detained against his
will from leaving a nursing home (Big Town Nursing Home v. Newman, 461 S.W.2d195,
Tex. Civ. App. 1970).
A more common situation occurs when a patient wishes to leave a hospital against
medical orders. In this case, the patient is asked to sign a statement that says he or she
is leaving against the advice of the physician. There have also been a few cases of false
imprisonment, resulting from hospitals trying to hold patients until their bills were paid
(Williams v. Summit Psychiatric Ctrs., 363 S.E.2d 794, Ga. App. 1987). However, no such
cases have been reported in the last few years because hospitals now understand that
this practice is unacceptable.
DEFAMATION OF CHARACTER Making false and/or malicious statements about
another person constitutes defamation of character if the person can prove damages.
Defamation can be in two forms: slander or libel. According to Black’s Law Dictionary,
slander (oral defamation) is speaking false and malicious words concerning another
person that brings injury to his or her reputation. There are four recognized excep-
tions that require no proof of actual harm to a person’s reputation in order to recover
damages for slander: accusing a person of a crime; accusing someone of a “loathsome”
disease, such as a sexually transmitted disease; using words against a person’s busi-
ness or profession; and calling a woman unchaste. Libel is, in general, any publication
in print, writing, pictures, or signs that injures the reputation of another person. Phy-
sicians and nurses are protected against an accusation of libel when complying with
a law to report disease or cases of abuse. See Chapter 7, “Public Duties of the Health
Care Professional.”
FRAUD Fraudulent practices consist of attempts to deceive another person. For exam-
ple, making a statement to a cancer patient that “Dr. Williams is a miracle worker; she’ll
have you feeling better in no time” is a false promise, because there are too many vari-
ables when dealing with cancer. However, a more common type of medical fraud con-
sists of false billing practices (for example, billing an insurance company or government
CHAPTER 2 The Legal System 39
agency for a diagnosis with a higher compensation rate than the actual diagnosis, also
known as “coding up”), especially relating to Medicare and Medicaid.
Physicians are prohibited from accepting kickbacks, or payments of any kind, for
the referral of Medicare and Medicaid patients under the Medicare-Medicaid Anti-
fraud and Abuse Amendments. In some cases, physicians have received kickbacks from
medical technology companies for using their products on patients. This is considered
a criminal offense under the antifraud law and could result in a large penalty and even
imprisonment.
Embezzlement, a form of fraud, is the illegal appropriation of property, usually
money, by a person entrusted with its possession. It can occur in a physician’s or den-
tist’s office when a trusted office manager has total control over the office finances. To
embezzle means to willfully take another person’s rightly owned property or funds.
For control purposes, more than one person should receive payments, issue receipts for
payments, audit the accounts, and deposit the money.
INVASION OF PRIVACY An invasion of privacy can occur at any time during a
patient’s treatment, even after the patient has granted permission to allow publicity. For
example, in the case of allowing photographs or videotapes to be taken, the patient may
cancel the permission at any time. In Estate of Berthiaume v. Pratt, an invasion of privacy
case was tried after a patient with cancer of the larynx died. The deceased patient had
allowed his physician to take several photographs that were to be used for the medi-
cal record but not for publication. A few hours before the hospitalized patient died,
the surgeon and a nurse attempted to take more photographs in spite of the patient’s
indication he did not want this done and his wife’s protests. The wife sued the surgeon
for assault, because he had moved the patient’s head during the photo taking, as well
as invasion of privacy. An appeals court found in favor of the plaintiff and stated that
taking photographs in spite of the patient’s protests was an invasion of his legal rights
to privacy (Estate of Berthiaume v. Pratt, 365 QA.2d 792, Me. 1976).
The famous Supreme Court case in 1973, Roe v. Wade, gave strength to the argu-
ment that a woman had a right to privacy over matters that related to her body, which
included pregnancy (Roe v. Wade, 410 U.S. 113, 1973).
UNINTENTIONAL TORTS Unintentional torts, such as negligence, occur, for exam-
ple, when the patient is injured as a result of the health care professional’s not exercising
the ordinary standard of care. The term standard of care means that the professional must
exercise the type of care that a “reasonable” person would use in a similar circumstance.
Morrison v. MacNamara illustrates the standard of care issue. In this case, MacNamara,
a technician, took a urethral smear from the patient, Morrison, while the patient was
standing. Morrison fainted, hit his head, and permanently lost his sense of smell and
taste. An expert witness from Michigan testified that the national standard of care for
taking a urethral smear requires the patient to sit or lie down. Thus, the court found in
favor of the patient (Morrison v. MacNamara, 407 A.2d 555, D.C. 1979). Standard of care
is discussed more fully in Chapter 3.
An unintentional tort exists when a person had no intent of bringing about an
injury to the patient. Health care professionals can be sued for a variety of situations,
but most lawsuits relate to the unintentional tort of negligence.
Negligence is the failure or omission to perform professional duties to an
accepted standard of care, such as a “reasonable person” would do. In other words,
negligence occurs when a person’s actions fall below a certain level of care. Negli-
gence can involve doing something carelessly or failing to do something that should
have been done. It can also involve doing something reckless such as performing a
procedure without adequate training. Physicians and other health care professionals
usually do not knowingly indulge in acts that are negligent, so negligence usually
falls within the classification of unintentional tort. Malpractice, which is misconduct
or demonstration of an unreasonable lack of skill, relates to a professional skill such as
40 PART 1 The Legal Environment
medicine or the law. Malpractice is a particular type of negligence that can be thought
of as “professional negligence.” While anyone can be accused of being negligent, only
professionals can be sued for malpractice. Examples of professionals who are sued
for malpractice include physicians, nurses, lawyers, accountants, pharmacists, and
physical therapists.
Negligence and malpractice are similar in that both relate to wrongdoing. In medi-
cal malpractice, negligence is considered the predominant theory of liability. You can
only be sued for malpractice if you are negligent in something done within your pro-
fessional capacity. The topics of negligence and malpractice are discussed further in
Chapter 6.
See Table 2.2 for some actions that are considered unintentional or negligent torts.
• Altering or tampering with a medical record
• Failure to adequately assess or monitor a patient’s condition
• Failure to maintain a safe environment
• Failure to dispense the correct medication
• Failure to document in a timely manner
• Failure to follow policies and procedures
Table 2.2 Unintentional or Negligent Torts
Contract Law
Contract law addresses a breach, or neglect, of a legally binding agreement between
two parties. The agreement or contract may relate to insurance, sales, business, real
estate, or services such as health care.
A contract consists of a voluntary agreement, written or oral, that two parties
enter into with the intent of benefiting each other. Something of value, which is termed
consideration, is part of the agreement. In the medical profession, the consideration
might be the performance of an appendectomy for a specific fee. An agreement would
take place between the two parties that would include the offer (“I will perform the
appendectomy”) and the acceptance of the offer (“I will allow you to perform the
appendectomy”). Therefore, a surgeon who has consent to perform a hysterectomy on a
patient may not perform an appendectomy at the same time unless there is consent
from the patient for both procedures.
In order for the contract to be valid (legal), both parties must be competent. The
concerned party (patient) must be mentally competent and not under the influence
of drugs or alcohol at the time the contract is entered into. If there is a question as to
whether an individual is mentally competent, this must be adjudicated in a court of law.
TYPES OF CONTRACTS A contract can be either expressed or implied. An expressed
contract is an agreement that clearly states all the terms. It can be entered into orally
or in writing.
Med Tip
Remember that it is easier to prevent negligence than it is to defend it.
Med Tip
Most contracts are enforceable, even if oral.
Each state identifies certain types of contracts that must be in writing. The sale of
property, mortgages, and deeds are required to be in writing by most state statutes.
CHAPTER 2 The Legal System 41
There are state statutes and federal laws regarding contracts that relate to the medi-
cal profession. For example, if a third party agrees to pay a patient’s bill, a contract must
be put in writing and signed by the third party. A copy of this document should be kept
in the patient’s chart or file. If physicians agree to allow their patients to pay bills in four
or more installments, the interest (if any) must be stated in writing (Truth in Lending
Act of 1969, discussed in Chapter 8).
A signed permit to receive a vaccine would be an example of an expressed or writ-
ten contract in a medical situation.
An implied contract is one in which the agreement is inferred from signs, inaction,
or silence. For example, when a patient explains his or her symptoms to the physician,
and the physician then examines the patient and prescribes treatment, a contract exists,
even though it was not clearly stated, and both parties must follow through on the
implied agreement. This can cause problems for both parties if there is not a clear under-
standing of the implied contract. For example, a New York court found an implied con-
tract to pay for medical services existed when a physician listened to a patient describe
his symptoms over the telephone (O’Neill v. Montefiore Hosp., 202 N.Y.S.2d, 436, App.
Div. 1960). An implied contract can exist when a patient brought into an emergency
department clearly needs and receives immediate treatment.
TERMINATION OF THE CONTRACT A breach of contract occurs when either party
fails to comply with the terms of the agreement. For example, if a physician refuses
to perform a medical procedure he or she had agreed to perform, the physician has
breached the contract. If a patient does not pay an agreed-upon fee, then the patient
breached the contract with the physician.
The termination of a contract between patient and physician generally occurs when
the treatment has ended and the fee has been paid. However, issues may arise that
cause premature termination of a contract. It should be noted that both physicians and
patients have the right to terminate the contractual agreement. A breach of contract
occurs when one of the parties that entered into the contract does not keep his or her
promise as, for example, when a patient refuses to pay a bill. A physician may be liable
for breach of contract if he or she has promised to cure a patient and then failed to do
so. The breach of contract can occur even if there was no negligence on the part of the
physician.
When terminating a contract, physicians should be careful that they are not
charged with abandonment of the patient. To protect against an abandonment charge,
any letter from the physician to the patient should indicate the date his or her services
will be terminated. A copy of this letter to the patient should be placed in the patient’s
record. In addition, there should be a notation in the patient’s chart that a notification
of termination letter was sent. It is also a good idea to use certified mail and include
“signature required” when the letter is sent and to ask for proof of delivery from the
postal or other delivery service, keeping those receipts with the patient’s records. That
extra step should the case go to court is vital. See Chapter 5 for a complete discus-
sion of abandonment. Some of the reasons for premature termination of a medical
contract are:
• Failure to follow instructions
• Missed appointments
• Failure to pay for service
Med Tip
Breach of contract refers to the failure, without legal excuse, to perform any promise or to
carry out any of the terms of a contract.
42 PART 1 The Legal Environment
• Statement from the patient (orally or in writing) that he or she is seeking the
care of another physician (e.g., the patient’s insurance may have changed and
the physician may not be covered by the new insurance, or the patient may
move)
Class Action Lawsuit
A class action lawsuit can be filed by one or more people on behalf of a larger group of
people who are all affected by the same situation. For example, class action lawsuits are
commonly filed in product liability or pharmaceutical cases in which a large number of
people are negatively affected by the same product, such as cigarettes. In March 2000,
a group of women in Florida filed a class action lawsuit against a group of physicians
who failed to get informed consent before subjecting the women to random medical
experimentation.
Public Law
Public law concerns relationships between individuals and the government as well
as relationships between individuals that are of concern to society as a whole. Within
public law, criminal law and administrative law are most likely to have application to
medical practice.
Criminal Law
Criminal law is a branch of public law that deals with offenses against the state. These
laws are created by the government to protect the public as a whole from the harmful
acts of others. The purpose of criminal law is to define socially intolerable conduct
that is punishable by law. No citizen of the United States can bring a criminal law-
suit against another person, because these are offenses against society as a whole. A
criminal act is one in which a person or institution commits an illegal act or a failure
to act. Criminal law requires evidence beyond a reasonable doubt, which is evidence
with an almost absolute certainty that a person did commit a crime. It is a higher
standard than the mere preponderance of evidence required in civil law. In a state
crime, a local prosecutor in the District Attorney’s office will bring about a criminal
action against the accused person. In a federal crime, it will be a federal prosecutor
who brings about this action.
In a criminal case, the government (the state government in most cases) brings the
suit against a person or group of people accused of committing a crime within the bound-
aries of the state, resulting in a fine, imprisonment, or both if the defendant is found guilty.
Federal criminal offenses include illegal actions that cross state lines—kidnapping,
treason, or other actions that affect national security. Crimes involving crossing the
borders of the United States (e.g., illegal transport of drugs and any illegal act against
a federally regulated business, such as a bank) are also federal criminal offenses.
Criminal acts fall into two categories: felony and misdemeanor. A felony carries
a punishment of death or imprisonment in a state or federal prison for more than
one year. These serious crimes include murder, rape, sodomy, robbery, larceny, arson,
burglary, tax evasion, and practicing medicine without a license. A misdemeanor is a
less serious offense. Misdemeanors include traffic violations, disturbing the peace, and
minor theft. A misdemeanor carries a punishment of fines or imprisonment in jail for
up to a year. See Figure 2.5 for an illustration of the felony case process, and Figure 2.6
for an illustration of the misdemeanor case process.
A physician’s license may be revoked by the state licensing board if he or she is
convicted of a crime. Criminal cases in the health care field have included revocation
of a license for violating narcotics laws, sexual misconduct, income tax evasion, coun-
terfeiting, and murder.
CHAPTER 2 The Legal System 43
FIGURE 2.5 Felony Case Process
Crime
Police
Investigation
Pretrial
motions
Indictment by
grand jury
Trial
Guilty verdict Acquittal
Plaintiff
pleads guilty
Appeal to Court
of Appeals
Charges may
be dropped or
dismissed
Prosecuting
attorney files
information
Defendant
appears before
the judge
Probation/
Suspended
Sentence
Sentencing
Imprisonment
Parole
Probation Violation
Arraignment
FIGURE 2.6 Misdemeanor Case ProcessTraffic citation
Police arrest
Police citation
Citizen information
Prosecuting attorney
Municipal or district
court arraignment
Not guilty plea and
mandatory
appearance citation
Guilty plea or bail
forfeiture
Trial by judge/jury
Not guilty verdict Guilty verdict Sentencing
Probation, prison,
and/or fine
Appeal to Superior
Court
Appeal to Court of
Appeals
Charge dismissed
Case closed
44 PART 1 The Legal Environment
Administrative Law
Administrative law, another branch of public law, covers regulations that are set by
government agencies. In the health care field, federal and state agencies, under autho-
rization from Congress or state legislatures, have created a multitude of rules and
regulations. Violations of these regulations may constitute criminal or civil violations.
However, in most cases, they are civil law violations. Examples of entities that are
covered under administrative law include licensing boards for physicians and nurses,
Workmen’s Compensation Boards, and the Department of Health and Human Services.
Wide-ranging health care—related regulations include the following:
• Licensing and supervision of prescribing, storing, and dispensing controlled
substances
• Health department regulations, including reporting requirements of certain com-
municable diseases
• Regulations against homicide, infanticide, euthanasia, assault, and battery
• Regulations against fraud
• Internal Revenue Service regulations that are health care related.
Health care professionals are more involved in areas of administrative law than
in any other source of law. The penalties for violations of this category of law include
fines, sanctions, and revocation or termination of licenses.
Med Tip
When faced with difficult ethical or legal dilemmas, remember that your hard-earned license
or certification can be revoked if you make the wrong decision.
The Court Systems
There are two court systems in the United States: state and federal. Each system has
specific responsibilities that may be either exclusive, meaning that only that particular
court can hear a case, or concurrent, meaning both courts have the power to hear the
case. Which court hears the case depends on the plaintiff’s choice, provided both courts
have jurisdiction to hear the case. For a criminal case, this depends on the type of crime
and where the criminal action occurred. For example, a bank robbery that took place in
Alabama will usually be tried by a federal court in that state. In a civil case, the type of
court used depends on where the incident occurred and the type of lawsuit.
Types of Courts
The federal court system has jurisdiction, or power to hear a case, when one of the
following conditions is present:
• The dispute relates to a federal law or the U.S. Constitution
• The U.S. government is one of the parties involved in the dispute
• Different states’ citizens are involved in the dispute and the case involves over
$75,000
• Citizens of another country are involved in a dispute with a U.S. citizen and the
case involves over $75,000
• The disputed activity occurred in international waters
If the case does not involve one of these situations, it must be tried in state court.
However, even if one of these situations exists, the case may still be heard in state court
unless Congress has prohibited state courts from hearing the case, such as with a kid-
napping that takes place across state lines. Cases involving a federal crime, bankruptcy
CHAPTER 2 The Legal System 45
law, and patent law must be heard in federal court. Cases involving divorce, child
custody, and probate must be heard in state court.
The court system is divided into three levels. The levels for the federal court system
are district (or municipal), court of appeals (or circuit courts), and the U.S. Supreme
Court. A case is tried at the lowest level court first. If that court’s decision is appealed,
or challenged, then the next higher court may examine the decision.
The state courts, from lower to higher, are divided into district or municipal trial
courts, state court of appeals, and the state’s highest court for final appeals. The lower
state courts hear cases such as small claims and traffic violations.
Physicians may have to take a patient who has a delinquent account to small claims
court. Physicians may authorize their office manager, bookkeeper, or other office assis-
tant to appear in court for the hearing. The clerk of small claims court can provide
information on the requirements and procedures relating to this type of lawsuit.
Probate court, or estate court, handles cases involving estates of the deceased. A
physician may have to contact the county court recorder for information about filing a
claim for payment from the estate of a deceased patient.
Med Tip
It is always advisable to seek payment for all medical services that have been provided to
dying or deceased patients. Failure to seek payment may be thought of as an indication
of guilt or negligence over a patient’s treatment or death.
The Trial Process
In a trial, the judicial process is designed to determine certain facts by hearing evidence,
determine which facts are relevant, apply relevant principles of law, and then pass a
judgment. A grand jury hearing is the first step in some cases.
The Grand Jury
The federal government and many states use the grand jury process. A grand jury, usu-
ally consisting of from 12 to 23 private citizens, hears evidence about a criminal case
in order to determine if the case has enough merit to be heard in court. Thus, a grand
jury can serve as a filter to prevent cases from being heard when there is insufficient
evidence. The grand jury hearings are held in private, and the defendant, the person
being sued in a court of law, may or may not appear to speak before the grand jury.
The defendant can be a physician, a nurse, a representative of the health care facility
(employer), and/or other health care providers. The grand jury can ask to see docu-
ments relating to the investigation and speak with witnesses. After hearing all the evi-
dence and deliberating among themselves, the grand jury votes on whether they should
move the indictment, a written legal charge against the defendant, to a trial court.
The Procedure
When two parties are unable to solve a dispute by themselves, it may result in
litigation, a dispute or lawsuit that is tried in court. A physician may be the plaintiff,
the person bringing an action into litigation, or the defendant. A plaintiff can be a
patient, the patient’s family, or anyone else who has a right to be compensated under
the law because of the injury the patient (plaintiff) is said to have received. A prosecutor
brings a criminal lawsuit on behalf of the government.
Subpoena
Discovery is the legal process by which facts are discovered before a trial begins. A court
of law may need to subpoena a person or records. A subpoena is a written command
from the court for a person or documents to appear in court. In some cases, a deposition
46 PART 1 The Legal Environment
can be taken, meaning that the person’s statement is recorded with witnesses present,
and the person may not be required to appear in court. The deposition is submitted by
an attorney during the court case. A subpoena duces tecum, a Latin phrase meaning
“under penalty, take with you,” is a court order requiring a witness to appear in court
and to bring certain records or other material to a trial or deposition. There is a penalty
for failure to appear or present documents if subpoenaed by the court. A person or
documents may also be produced in court on a voluntary basis, thus not requiring a
subpoena. (Subpoena duces tecum is explained more fully in Chapter 9.)
A subpoena must be sent by registered mail or hand-delivered (served) to the per-
son who is being requested to appear in court, that is, the person who is named on the
subpoena. Unless requested to do so, an assistant cannot accept a subpoena on behalf
of a physician without his or her knowledge; otherwise, the subpoena is considered
“not served.” The physician may delegate the responsibility to an assistant to accept a
subpoena on his or her behalf, but this practice is not encouraged. If there are any ques-
tions, it is always a good idea to consult with an attorney if you are served a subpoena.
A failure to appear in court or produce materials as asked in the subpoena is considered
to be a “contempt of court” and carries a serious penalty.
Settling out of Court
Not all lawsuits end up in court. In many situations, attorneys for both sides work out
a settlement, or agreement, between the parties, so there is no need for a trial. This is
called settling out of court.
Summary Judgment
A request may be made by an attorney on either side for a summary judgment to take
place in a civil lawsuit. A summary judgment is a decision made by the court (judge)
in response to a motion that declares there is no necessity for a trial because there is no
dispute as to the material facts. Any person who is involved in a civil action can request,
through their attorney, a summary judgment by the judge if he or she believes there is
no issue of law involved in the case. When the evidence supporting the position of one
of the parties involved in the lawsuit is very clear from the onset, there may be no need
for a trial to take place. It is a procedural device that can assist in bringing a controversy
to quick closure without a trial. Summary judgment can result in a win for one side of
the case and is based on pleadings (formal written statements) alone.
Trial
If the parties are unable to settle the dispute or if there is no summary judgment, a trial
may be held. A court case can be tried before a judge only or before a judge and jury of
the defendant’s peers. Both parties (defendant and plaintiff) in the case may waive, or
give up, their right to a jury trial or may request a jury trial.
JURY SELECTION If a jury is requested, then 6 to 12 people are selected from a large
pool of potential jurors. The jurors are most commonly summoned from a list of resi-
dents of a particular region, registered voters, or driver’s license holders. The judge
and attorneys for both sides of the case (plaintiff and defendant) question the potential
jurors to find an impartial jury. After the final selection of jurors is made, the case is
ready to begin.
OPENING STATEMENTS A trial begins with opening statements made by the attorneys
for both sides of the case that describe the facts they will attempt to prove during the case.
PRESENTATION OF EVIDENCE AND EXAMINATION OF WITNESSES The plain-
tiff’s attorney then questions the first witness. A witness is generally someone who has
knowledge of the circumstances of the case and can testify, under oath, as to what hap-
pened. This witness can then be cross-examined (asked questions) by the defendant’s
attorney. After all of the plaintiff’s witnesses have been examined and cross-examined,
CHAPTER 2 The Legal System 47
the defendant’s attorney (defense counsel) presents witnesses for the defense side of
the case. The plaintiff’s attorney then has an opportunity to cross-examine the defense
witnesses. At any time during the trial, as appropriate and approved by the judge,
items such as documents, photos, or telephone records may be entered into evidence.
When this portion of the case has been completed, and after any additional witnesses
are called and cross-examined, both sides “rest their case,” which means that all the
evidence and witnesses they plan to present have been entered and/or examined.
FIGURE 2.7 The Procedure for a Civil Trial
Plaintiff’s
complaint is
filed in court
Defendant
is summoned
to court
Defendant’s
attorney files
an answer
Trial date is set
Trial
Court of Appeals
Supreme Court
Pretrial
matters
heard
Case
settled
without
trial
The complaining party, or
attorney, prepares a
complaint and files it
with the proper court.
The defendant is served a
summons that formally
notifies defendant of the
plaintiff’s suit. The defendant
or defendant’s attorney prepares
an answer and files it in the
same court.
Pretrial matters may be
filed or heard. A settlement
may be reached at any time.
The case is heard in court
by a judge or by a jury
comprised of 6 to 12 jurors.
Either party may wish to
appeal the case to the Court
of Appeals and perhaps eventually
to the Supreme Court.
CLOSING ARGUMENTS AND VERDICT Attorneys for both the plaintiff and the
defendant then present summaries of the evidence or summaries of their case, called
closing arguments. In a jury trial, the judge instructs the jury on the areas of law that
affect the case. The jury is then excused and taken to another room so they can deliber-
ate, examine the evidence presented, and come to a conclusion, or verdict. If the trial
has been conducted in front of a judge without a jury, then the judge makes a decision
based on the evidence presented and the law. In a civil case, if the judge or jury finds
in favor of the plaintiff, then the defendant is typically ordered to pay the plaintiff a
monetary award. In a criminal case, if the defendant is found guilty, the judge sentences
the defendant with a fine and/or a prison sentence. In some cases, if the state statutes
allow it, the death penalty may be applied. If the defendant wins in either a civil or
criminal case, the case is over unless an appeal is made. See Figure 2.7 for an illustration
of a civil trial procedure.
A plaintiff or defendant may appeal the decision to a higher court. Ultimately, a
case can be appealed to the highest court, either in the state or, in a federal case, the
U.S. Supreme Court.
Med Tip
The U.S. legal system is based on the premise that all persons are innocent until proven
guilty. Because the plaintiff is claiming that the defendant violated a law, the burden of proof
is placed upon the plaintiff to prove that the defendant is liable.
48 PART 1 The Legal Environment
Med Tip
A judgment of not guilty, or not liable as in a malpractice case, does not mean that the
defendant did not commit the crime or perform the misconduct. It only means that, based
on the evidence presented, the plaintiff failed to prove it to a jury.
Standards of Proof
When deciding a case in a court of law, there are several different levels of proof that
are required depending on how serious society considers the crime to be. In a civil case,
the court will generally look at a “preponderance of evidence.” This is evidence that,
as a whole, shows that the fact sought to be proved is more probably true than not.
This means that the burden of proof in a civil case will place greater weight on evidence
that is more credible and convincing. This does not mean that the cases will be decided
on a greater number of witnesses, but rather on a greater weight of all the evidence.
In juvenile abuse cases, the court tends to use “clear and convincing evidence.” This
means that there is a reasonable certainty of the truth. “Clear and convincing evidence”
or proof, requires more than a “preponderance of evidence” or proof, as in a civil case,
and less than proof “beyond a reasonable doubt,” as in a criminal case. In criminal tri-
als, a judge or jury must find the defendant guilty “beyond a reasonable doubt,” which
means that the facts when proven must establish guilt.
Expert Witness
An expert witness is a person called as a witness in a case in which the subject matter is
beyond the general knowledge of most people in the court or on the jury. In cases related
to health care, this person, usually a medical professional, has special knowledge or experi-
ence not only about the facts of a case but also about the professional conclusions that are
drawn from the facts. The testimony of the expert witness should assist the jury or judge
in evaluating the facts in a particular case. In a medical malpractice suit, an expert witness
often is called to testify as to what the standard of care for a patient is in a similar circum-
stance and locality. An expert witness in a medical malpractice suit involving a physician
is generally a physician. In cases involving nurses, an expert witness is often a nurse.
Expert witnesses, who are generally paid a fee, may use visual aids such as charts,
photos, x-rays, models, and diagrams. They do not testify about the actual facts of the
case, but clarify points of knowledge that may not be readily understood by all present.
Physicians and nurses often serve as expert witnesses to describe the standard of care in
a community when another physician or nurse is being sued for negligence. For exam-
ple, an expert witness on the topic of DNA may be called to testify in a paternity case.
Testifying in Court
If you are called to testify in court, remember the following:
• Always tell the truth.
• Be professional. People are judged by their appearance as well as by their behavior
in court. An attorney can offer further advice on this.
• Remain calm, dignified, and serious at all times. The opposing attorney may try to
make the witness nervous by asking difficult questions.
• Do not answer a question you do not understand. Simply ask the attorney to repeat
the question or state, “I don’t understand the question.”
• Just present the facts surrounding the case. Do not give any information that is not
requested. Do not insert your opinion. “The patient was shouting” is stating a fact;
“He was angry” is your opinion.
• Do not memorize your testimony ahead of time. You will generally be allowed to
take some notes with you to refresh your memory concerning such things as dates.
CHAPTER 2 The Legal System 49
Discussion Questions
1. Discuss the significance of common laws for the
health care professional.
2. Explain what is meant by the statement, “It is easier to
prevent negligence than it is to defend it.”
3. Differentiate between common law and statutory law.
4. Explain what the numbering system in public law
means.
5. What is meant by burden of proof?
6. What is a subpoena and who can accept it?
Review Challenge
Short Answer Questions
1. How can embezzlement be prevented?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What is the difference between libel and slander?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Chapter Review
Points to Ponder
1. Why do I have to know how a bill becomes a law?
2. Why is common law important?
3. How can I avoid a lawsuit?
4. Can I restrain a person against his or her will if I
know it is for his or her own good?
5. Can I be sued if I make a statement to a patient about
a mistake a physician has made?
6. What should I do if I see a physician or another health
care employee make an error?
7. Can I be sued if I unintentionally leave a patient
record with a diagnosis of AIDS within sight of
another patient?
8. What do I do if I am subpoenaed?
2
Med Tip
Keep in mind that a lawsuit can take years to come to closure. The mean age for a lawsuit
from beginning to settlement is three to five years. Every necessary step should be taken
to avoid a lawsuit in the first place.
Appellate Court System
The U.S. legal system at both the state and federal levels has a built-in appeals process
for decisions that need to be reviewed. If the losing party in a lawsuit believes that the
case was handled improperly or unfairly, the party can “appeal” to a higher court of
law to have the decision corrected or changed in its favor. The appellate court, or higher
court, reviews the written transcripts of the original trial. This court will examine the
evidence to determine if, in its opinion, the ruling was correct and fair. The appellate
court does not retry the case but acts as a reviewing court. After reading the transcripts
from the case, the judge affirms the original decision, reverses it, or modifies it.
50 PART 1 The Legal Environment
3. What are some of the reasons for termination of a
medical contract?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What is an expert witness and why might one be used
during a lawsuit?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What is the difference between a felony and a misde-
meanor? Give an example of each.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What is a subpoena duces tecum?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What is a class action lawsuit? Give an example of
one.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. What is the role of the appellate court within the court
system?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. breach
_____ 2. deposition
_____ 3. plaintiff
_____ 4. defendant
_____ 5. felony
_____ 6. misdemeanor
_____ 7. waive
_____ 8. tort
_____ 9. subpoena
_____ 10. precedent
COLUMN B
a. order for a person or documents to appear in court
b. person who is being sued
c. give up the right to something
d. law that covers harm to another person
e. earlier ruling applied to present case
f. failure
g. person who sues another party
h. less serious crime such as a traffic violation
i. oral testimony to be used in court
j. serious crime such as practicing medicine without a
license
Multiple Choice
Select the one best answer to the following statements:
1. Sources of law include all of the following except
a. regulatory law.
b. executive law.
c. statutory law.
d. common law.
e. constitutional law.
2. Subpoena duces tecum means
a. “let the master answer.”
b. “under penalty, take with you.”
c. “let the decision stand.”
d. “the thing speaks for itself.”
e. “the thing has been decided.”
CHAPTER 2 The Legal System 51
3. Stare decisis means
a. “let the master answer.”
b. “under penalty, take with you.”
c. statutory law has been invoked.
d. constitutional law has been invoked.
e. “let the decision stand.”
4. Administrative law covers all of the following except
a. health department regulations.
b. licensing of prescription drugs.
c. Internal Revenue Service regulations.
d. fraud.
e. all of the above are covered under administrative
law.
5. The person who brings the action into litigation is
called a(n)
a. attorney.
b. plaintiff.
c. defendant.
d. judge.
e. juror.
6. A court order that requires a witness to appear in
court with certain records is called a
a. deposition.
b. discovery.
c. subpoena duces tecum.
d. res judicata.
e. waiver.
7. The common law of the past that is based on a
decision made by judges is called
a. civil law.
b. constitutional law.
c. case law.
d. criminal law.
e. statutory law.
8. The threat of doing bodily harm to another person—
stating, for example, “If you won’t allow us to
continue this procedure, we will have to tie your
hands”—is
a. assault.
b. battery.
c. fraud.
d. invasion of privacy.
e. all of the above.
9. Standard of care refers to the care that
a. a reasonable person would use.
b. is ordinary care.
c. a prudent person would use.
d. health care professionals in all specialties must
practice.
e. all of the above.
10. Removing one’s clothing in order to allow the
physician to perform a physical examination is a(n)
a. invasion of privacy.
b. defamation of character.
c. implied contract.
d. abandonment.
e. none of the above is correct.
Discussion Cases
1. Analyze “The case of Jacob and the Diseased Leg” (found
at the beginning of the chapter) using the three-step eth-
ics model (Blanchard-Peale).
a. _________________________________________________
_________________________________________________
b. _________________________________________________
_________________________________________________
c. _________________________________________________
_________________________________________________
52 PART 1 The Legal Environment
Put It Into Practice
Give an example of a violation of each of the six torts mentioned in this chapter (assault,
battery, false imprisonment, defamation of character, fraud, and invasion of privacy) as
it might affect your particular area of medical specialization.
Web Hunt
Search the Web site of the National Institutes of Health (www.nih.gov). What types of
information and service does this site offer?
Critical Thinking Exercise
What would you pick if you had a choice between having a legal system that never
punishes an innocent person but often lets the guilty go free, or a system that sometimes
punishes the innocent but never frees the guilty? Do you have a better solution?
Bibliography
Aiken, T. 2008. Legal and ethical issues in health occupations. Philadelphia:
Saunders.
Beaman, N., and L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Prentice Hall.
Black, H. 2014. Black’s law dictionary (8th ed.) St. Paul, MN: West
Publishing.
Hall, M., and M. Bobinski. 2014. Healthcare law and ethics in a nutshell.
St. Paul, MN: West Publishing.
Posgar, G., and N. Santucci. 2016. Legal and ethical issues for health profes-
sionals. Sudbury, MA: Jones and Bartlett.
Schmallager, F. 2010. Criminal justice today. Upper Saddle River, NJ:
Pearson/Prentice Hall.
Taber’s cyclopedic medical dictionary (21st ed.). 2017. Philadelphia: F.A.
Davis Company.
2. Using Figure 2.7, explain the procedure for a civil trial.
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
3. Adam Green is an orderly in the Midwest Nursing Home.
His supervisor, Nora Malone, has asked him to super-
vise the dining room while 20 residents eat their evening
meal. Bill Heckler is an 80-year-old resident who is very
alert and ambulatory. He tells Adam that he doesn’t
like the meal that’s being served, and he wants to leave
the dining room and go back to his own room. Adam is
quite busy, as he has to watch the behavior of several
patients who are confused. He’s concerned that patients
might choke on their food or otherwise harm themselves.
Adam becomes impatient with Bill and tells him that he
cannot leave the room until everyone is finished eating.
Adam then locks the dining room door. Bill complains to
the nursing home administrator that he was unlawfully
detained. He then hires an attorney, who brings forth a
charge of false imprisonment.
a. Was Adam’s action justified?
_________________________________________________
_________________________________________________
b. In your opinion, was this a case of false imprisonment?
_________________________________________________
_________________________________________________
c. What could Adam have done to defuse the situation?
_________________________________________________
_________________________________________________
d. Do the nursing home administrator and Nora Malone
have any legal responsibility for Adam’s action?
_________________________________________________
_________________________________________________
http://www.nih.gov/
53
Chapter 3
Essentials of the Legal System
for Health Care Professionals
Learning Objectives
After completing this chapter, you will be able to:
3.1 Define all key terms.
3.2 List the four basic characteristics of state
medical practice acts.
3.3 Describe the three methods by which a state
grants a license to practice medicine.
3.4 Discuss conduct that may result in a physi-
cian’s loss of license to practice medicine.
3.5 Identify the difference between licensure and
certification.
3.6 Discuss what the term standard of care means
for the physician and what it means for
someone in your profession.
3.7 Describe the importance of the discovery
rule as it relates to the statute of limitations.
3.8 Discuss the importance of the phrase respon-
deat superior as it relates to the physician.
Key Terms
Accreditation
Bonding
Confidentiality
Discovery rule
Endorsement
Good Samaritan laws
Guardian ad litem
Incident report
The Joint Commission on
Accreditation of Healthcare
Organizations (The Joint
Commission)
Prudent person rule
Reciprocity
Respondeat superior
Revoke
Risk management
Scope of practice
Standard of care
Statute of limitations
Tolling
The Case of Latoya and the Physical Therapy Patient
Latoya is in training to become a physical therapist. Dr. B., the
head of the Physical Therapy Department, has told her that she
helps the patients too much. Many times he has said, “You can’t
go home with the patients. They must learn to care for them-
selves.” Nearing the end of her program, Latoya is doing very well
in all her studies, but she fears that Dr. B. will not give her a good
performance evaluation unless she can better prepare the patients
for independence.
One of her patients, a 72-year-old-woman recovering from a
stroke, is adamant in her refusal to walk with either a walker or a
cane. She insists on remaining in her wheelchair because she is
afraid of falling. Latoya is sympathetic toward this patient’s fears.
She remembers seeing a patient fall during a physical therapy
session resulting in a fractured vertebra (bone) in her spine. The
woman was subsequently bedridden for several weeks while she
recovered. In addition, a statement that Latoya heard in one of
(continued)
54 PART 1 The Legal Environment
Introduction
Even though only a small portion of malpractice suits end up in court, it is still impor-
tant that all health care professionals realize how the law impacts the physician’s prac-
tice. The physician has a responsibility to respect the conditions of licensure. Health
care employees must understand their obligations to their physician/employer and to
the patients they serve.
Medical Practice Acts
Each state has statutes that govern the practice of medicine in that state. These are
called medical practice acts and are meant to protect the health and safety of the gen-
eral public. The acts were originally established in a limited number of states to protect
the general public from quackery, or persons practicing medicine without a legitimate
education and training. Each state legislature establishes a state medical board that
has the authority to control the licensing of physicians. While some slight differences
exist from state to state, in general these practice acts define who must be licensed to
perform certain procedures. These acts also specify the requirements for licensure; the
duties of the licensed physician; grounds on which the license may be revoked, or taken
away; and reports that must be made to the government or other appropriate agencies.
Medical practice acts also define the penalties for practicing without a license. These
state acts seek to protect patients from harm caused by persons who are not qualified
to practice medicine. Therefore, each state licensing board has the authority to grant a
medical license to qualified individuals as well as to revoke or take away that license
for cause and to fine, reprimand, and censure the physician (Figure 3.1).
Med Tip
Every state has a state board set up to handle issues relating to physician registration.
The title for these boards varies from state to state (e.g., State Board of Registration or
State Board of Medical Examiners). However, the functions are similar for all state boards.
her classes, primum non nocere, meaning “first, do no harm,” has
always influenced her behavior. Latoya is very reluctant to force
her patient to do something she doesn’t want to do.
1. In your opinion, is Dr. B. placing too much pressure on a
student?
2. Is this a legal or ethical problem, or both?
3. Who should Latoya talk to about her dilemma?
FIGURE 3.1 Physician Discussing Treatment
with Patient
© Monkey Business/Shutterstock
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 55
State licensing boards receive complaints about physicians from a variety of
sources: patients; other physicians; employees, including hospital employees; the
media; and insurance companies. The board has the authority to investigate each
complaint, but cannot prosecute the physician. However, the board may access
records that relate to each incident, including patient hospital records, individual
physician medical records, and insurance reimbursement records. The board may
declare the name of the physician but is obligated to keep a patient’s name confi-
dential. The board cannot provide the information to a court unless presented with
a court order.
A physician who moves to another state must obtain a license to practice in that
state also. The physician may be required to pass another state’s medical examination,
or the physician may receive reciprocity or endorsement from the state.
While medical practice acts vary from state to state, they generally:
• Provide for the establishment of a medical examining board, also called a State
Board of Registration or State Board of Examiners, that has authority to license
physicians
• Establish the baseline for the practice of medicine in that state
• Determine the prerequisites for licensure
• Forbid the practice of medicine without a license
• Specify the conditions for license renewal, suspension, and revocation
Licensure of the Physician
The board of examiners in each state may grant licensure through examination, endorse-
ment, or reciprocity.
Examination
Each state offers its own examination for licensure. Some states also accept or endorse
the National Board of Medical Examiners (NBME) licensing examination, usually taken
before the end of medical school, for licensure. Within the United States, the official
medical licensing exam is the Federal Licensing Examination (FLEX). The license is
issued to those who pass the examination, graduate from an accredited school, and
complete an internship. Successful completion of these criteria entitles one to set up
private practice as a general practitioner.
The U.S. Medical Licensing Examination (USMLE), which was introduced in 1992,
is a single licensing examination for graduates from accredited medical schools that
allows them to practice medicine. In addition to successfully passing the examination
(written and oral), the applicant is required by most states to:
• Provide proof that he or she has completed the professional education as required
by his or her state
• Provide proof of the successful completion of an approved internship/residency
program
• Provide information about any past convictions and history of drug or alcohol
abuse
• Have obtained an age of majority, generally 21 years old
• Be of good moral character
• Be a U.S. citizen or have evidence of filing a declaration of intent to become a citizen
(Some states have dropped this requirement.)
• Be a resident of that state
56 PART 1 The Legal Environment
Endorsement
Endorsement means an approval or sanction. A state may grant a license by endorse-
ment to applicants who have successfully passed the NBME exam. In fact, most physi-
cians in the United States are licensed by endorsement. Any medical school graduate
who is not licensed by endorsement is required to pass the state board examination.
Graduates of foreign medical schools must fulfill the same requirements as U.S. gradu-
ates. Licensure by endorsement is considered for acceptance or denial on a case-by-case
basis. In some cases, a physician trained in a particular country or foreign school may
not be able to obtain a license to practice in the United States without attending a U.S.
medical school.
Reciprocity
Physicians must satisfy the licensure requirements of any and all states in which they
practice. In some cases, the state to which the physician applies for a license will accept
the state licensing requirements of the state from which the physician already holds a
license. In that case, the physician will not have to take another examination. This prac-
tice of cooperation by which a state grants a license to practice medicine to a physician
already licensed in another state is known as reciprocity. Reciprocity is automatic if a
reciprocity agreement exists between the states where the current license is held and
licensure is being sought and if the requirements of the agreement are satisfied. For
instance, some states require a physician to be licensed for a certain number of years
before qualifying for reciprocity.
Registration
It is necessary for physicians to maintain their license by periodic reregistration or
renewal either annually or biannually. In addition to paying a fee to renew their license,
physicians are generally required to complete 75 hours of continuing medical education
(CME) units in a three-year period to ensure that they remain current in their field of
practice. While state requirements differ for renewal of a medical license, they generally
include (1) attending approved workshops, courses, and seminars; (2) completing self-
instruction modules; (3) teaching other health professionals; and (4) reading a variety
of approved medical literature.
There are a few exceptions to the requirement of having a valid state license to
practice medicine within that state. These include:
• A physician employed by a federal medical facility, such as a Public Health Service
wellness center or a Veterans Administration (VA) hospital (However, the physician
does have to be licensed to practice medicine, but it doesn’t have to be in the state
where the facility is located.)
• An out-of-state physician who is providing emergency medical care
• A physician who is waiting to become a qualified resident in a state in order to
obtain a license
• A research physician who does not practice patient-based medicine
• Military physicians at military hospitals
Generally, physicians in different states may consult with each other without being
licensed in each other’s state.
Revocation and Suspension of Licensure
A state may revoke a physician’s license for cases of severe misconduct, including
unprofessional conduct, commission of a crime, or personal incapacity to perform one’s
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 57
duties. Unprofessional conduct involves behavior that fails to meet the ethical standards
of the profession, such as inappropriate use of drugs or alcohol, gross immorality, or
falsifying records. Crimes may include Medicare/Medicaid fraud, rape, murder, lar-
ceny, and narcotics convictions. Personal incapacity often relates to a physical or mental
incapacity that prevents the physician from performing professional duties. Profes-
sional incompetence, such as malpractice or negligence, can also result in revocation
of a medical license.
The physician’s state licensing board oversees the suspension or revocation of a
license. The board will provide the physician with sufficient notice of any charges and
then perform a thorough investigation of the charges. In some states, the licensing board
can temporarily suspend a physician’s license to practice if a potentially dangerous
situation exists, such as drug impairment or criminal charges. The physician is always
accorded due process of the law, which includes a written description of the claim and
a hearing before the state medical examiners. The physician can then appeal the board’s
decision.
Practicing Medicine Without a License
No physician wishes to have a license expire for failure to renew or have their license
revoked for inappropriate behavior. A physician cannot legally practice medicine with-
out this license.
Med Tip
Remember that if a physician continues to practice medicine without renewal of his or her
license, under the law it is considered practicing medicine without a license.
Accreditation
Accreditation is a voluntary process in which an agency is requested to officially review
health care institutions such as hospitals, nursing homes, and educational programs
to determine competence. This is accomplished by sending in an objective third party,
such as The Joint Commission on Accreditation of Healthcare Organizations (The
Joint Commission), to examine the policies and procedures of the organization being
accredited. The accreditation process can be rigorous and generally requires an onsite
examination of the program under review. The institution or program must demon-
strate that it maintains high standards of care, as set by the reviewing body, for patients
and education of its participants. Accreditation of health care agencies and institutions
became especially important with the advent of Medicare. The federal government
stopped surveying hospitals providing care for Medicare patients and allowed the Joint
Commission to perform this function. If an institution loses its accreditation, it also loses
the ability to provide for Medicare patients.
The Joint Commission, established in 1952, accredits such organizations as: all types
of hospitals, including psychiatric, long-term care facilities; managed care organizations
such as HMOs; visiting nurse associations (VNA); and clinical laboratories. The Joint
Commission emphasizes the use of qualitative standards and looks for compliance with
outcome measures such as those found in quality assurance (QA) programs (see Chapter 1
for QA programs). A Joint Commission survey team visits the organization for an onsite
inspection every three years. Upon successful completion of the accreditation process,
an institution may display signage that it is accredited by The Joint Commission.
Other organizations that provide accreditation for the health care profession are
the Commission on Accreditation of Allied Health Education Programs (CAAHEP)
and Accrediting Bureau of Health Education Schools (ABHES). Both CAAHEP and
58 PART 1 The Legal Environment
ABHES provide accreditation for programs in allied health professions such as medical
assisting, emergency medical technicians (EMTs), physician assistants and respiratory
therapists, to name a few. Many other allied health professions also have accreditation
programs.
Standard of Care
Standard of care refers to the ordinary skill and care that all medical practitioners such
as physicians, nurses, physician assistants, medical assistants, and phlebotomists must
use, as determined by their state license or certification and that a “reasonable” person
would use in a similar circumstance. This level of expertise is that which is commonly
used by other practitioners in the same medical specialty when caring for patients.
Med Tip
The term reasonable is a broad, flexible word to make sure the decision is based on the
facts of a particular situation rather than on abstract legal principles. It can mean fair, ratio-
nal, or moderate. Reasonable care has been defined as “that degree of care a person of
ordinary prudence (the so-called reasonable person or reasonable health care professional)
would exercise in similar circumstances.”
The standard of care for particular professions has changed somewhat over the
years. For instance, in a Louisiana case, the court concluded that because doctors and
nurses are both members of the medical profession, they should both be held to the
same high standard of professional competence (Norton v. Argonaut Ins. Co., 144 So.2d
249, La. App. 1962). However, in a later case, the court recognized that “situations could
arise in which a doctor would be considered negligent in his performance of some task
where he failed to act to the best of his ability as a physician, while a nurse, performing
the same task in the same manner, could be acting to the best of her ability as a nurse”
(Thompson v. Brent, 245 So.2d 751, La. App. 1971).
While physicians are not obligated to treat everyone (except in the case of an
emergency), once a physician accepts a patient for treatment, he or she has entered
into the physician–patient relationship (contract) and must provide a certain stan-
dard of care (see Figure 3.2). This means that the physician must provide the same
knowledge, care, and skill that a similarly trained physician would provide under the
same circumstances. The law does not require the physician to use extraordinary skill,
only reasonable, ordinary care and skill. The physician is expected to perform the
FIGURE 3.2 Standard of Care Applies to
All Health Care Professionals
© Igor Mojzes/fotolia
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 59
same acts that a “reasonable and prudent” physician would perform. This standard
also requires that a physician not perform any acts that a “reasonable and prudent”
physician would not.
Physicians are expected to exhaust all the resources available to them when treating
patients and not expose patients to undue risk. If they violate this standard of care, they
could be liable for negligence.
The Prudent Person Rule
The prudent person rule, also called the “reasonable person standard,” means that a
health care professional, usually a physician, must provide information to a patient
that a reasonable, prudent person would want before he or she makes a decision about
treatment or refusal of treatment. In general, a reasonable, prudent person would want
to know the following:
• The diagnosis
• The risks and potential consequences of the treatment, excluding any remote or
improbable outcomes (This information should include the success and failure rates
of the physician and/or institution.)
• The expected benefits of the treatment or procedure
• Potential alternative treatments
• The prognosis if no treatment is received
• That an acceptable standard of care is followed
• The costs, including the amount of expected pain
In general, the physician discusses these issues with the patient; however, ancil-
lary health care professionals may be present during these conversations. The patient
should always be treated in terms of what a “reasonable, prudent person” would want.
Unfortunately, not all patients are provided the same courtesy.
Confidentiality
Confidentiality refers to keeping private all information about a person (patient) and
not disclosing it to a third party without the patient’s written consent. The duty of medi-
cal confidentiality is an ancient one. The Hippocratic Oath states, “What I may see or
hear in or outside the course of the treatment . . . which on no account may be spread
abroad, I will keep to myself, holding such things shameful to speak about.” This duty
seeks to respect the patient’s privacy, and it also recognizes that if the physician does
not keep information confidential, patients may be discouraged from revealing useful
diagnostic information to their physician.
According to the Medical Patients Rights Act (also called the Patient’s Rights Act),
a law passed by Congress in 1996, all patients have the right to have their personal
privacy respected and their medical records handled with confidentiality. Information
such as test results, patient histories, and even the fact that the person is a patient, can-
not be passed on to another person without the patient’s consent. No information can
be given over the telephone without the patient’s permission. No patient records can be
given to another person or physician without the patient’s written permission, unless
a court has subpoenaed it.
In short, any information that is given to a physician by a patient is considered con-
fidential, and it may not be given to an unauthorized person unless specifically required
by the law. Information should be communicated only on a need-to-know basis. (See
Chapter 10 for a more detailed discussion of confidentiality and the Health Insurance
Portability and Accountability Act of 1996, or HIPAA.)
60 PART 1 The Legal Environment
Statute of Limitations
The statute of limitations refers to the period of time that a patient has to file a lawsuit.
The court will generally not hear a case that is filed after the time limit has run out. This
time limit varies from state to state, but typically is one to three years. The only excep-
tion is that there is no statute of limitations for murder and some other criminal cases.
One of the purposes of the statutes is to prevent potential plaintiffs from “sitting on their
rights” while the memories surrounding the controversy grow dim or witnesses die or
move away. In addition, the statutes allow potential defendants to go on with their lives
without worry about a lawsuit that could be filed relating to some long-ago occurrence.
The statute of limitations, or the time period, however, does not always start “run-
ning” at the time of treatment. It begins when the problem is discovered or should have
been discovered, which may be some time after the actual treatment. This is known as
the discovery rule. In Teeters v. Currey, the plaintiff sued her doctor, alleging that as a
result of Dr. Currey’s negligence in performing surgery to sterilize Teeters, she gave
birth to a premature child with severe complications several years later. Teeters brought
an action for malpractice, and Currey pleaded the statute of limitations. The court found
in favor of the defendant, Currey. However, Teeters successfully appealed and the case
was remanded back to the lower court. The court adopted the “discovery doctrine”
under which the statute does not begin to run until the injury is, or should have been,
discovered (Teeters v. Currey, 518 S.W.2d 512, Tenn. 1974).
In some cases, the statute of limitations is tolled, or stops running. Tolling, or run-
ning, of the statute of limitations means that time has not expired, even if it is past the
usual two- to three-year time frame, such as two to three years after reaching the age
of majority for a child. For instance, most states say that the statute of limitations does
not begin to run until the injured person reaches age 18. So, when a minor is injured, the
minor may sue years after learning of the injury. While generally the court will appoint
a guardian ad litem, an adult to act in the court on behalf of a child in litigation, the
child does not have to sue through the guardian ad litem. The child may wait until he or
she reaches adulthood before suing an obstetrician and his or her health care assistants
18 years (plus the statute of limitations period, which varies slightly in each state) after
a birth injury has occurred, assuming the parents hadn’t already sued.
Med Tip
Be especially careful about discussing anything relating to a patient within earshot of oth-
ers. A comment such as, “Did Ms. Jones come in for her pregnancy test?” can result in
a breach-of-confidentiality lawsuit against the physician. Remember: “Walls have ears.”
Med Tip
The statute of limitations is a state law that varies by state.
Good Samaritan Laws
Good Samaritan laws are state laws that help to protect from liability health care pro-
fessionals and ordinary citizens who provide care to a victim of an accident or other
emergency. The emergency aid covered under this law must be given at the scene of the
accident or emergency. These laws exist in most states to encourage such aid. However,
with the possible exception of Vermont, there is no legal duty to assist a stranger in a
time of distress. But the law does state that those who do volunteer must exercise rea-
sonable care and skill in rendering such aid. This law protects those professionals who
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 61
do offer aid, outside of their work environment, in good faith, without gross negligence.
“Good faith” is an abstract quality that is best defined as being faithful to one’s duty or
obligation. It is an honest belief that a person can provide aid to an emergency victim
with no intention to defraud that victim. Under this law, the emergency care must be
provided without an expectation of payment.
The protection under this law has limits, which can vary from state to state. If an emer-
gency provider performed an action that was grossly negligent and acted in a way that
a reasonable person would know would harm the victim, the law’s protection would be
withdrawn and a lawsuit could then take place. This can be difficult to determine, however.
For example, an elderly person with brittle bones who receives chest compressions
during cardiopulmonary resuscitation (CPR) might accidentally sustain fractured ribs,
which puncture his or her lungs. A reasonable person would also have provided CPR in
the same manner with the same result. In this case the emergency care would be covered
under the Good Samaritan law even though the victim received an injury to her lungs.
Some states have provided additional protection under this law. For example, the
Ohio Good Samaritan law extends protection to emergency medical technicians (EMTs)
during ambulance runs. Since these laws vary from state to state, it is vital that every
health care professional knows and understands the Good Samaritan laws in his or her
own state.
Someone responding in an emergency situation is only required to act within the
limits of acquired skill and training. For example, a nursing assistant would not be
expected, or advised, to perform advanced emergency treatment that is considered
within the scope and practice of a physician or nurse.
Even though trained health care professionals are generally not under a legal obli-
gation to offer aid to an emergency victim, some believe they do have an ethical obliga-
tion. Their personal ethics set the guidelines for care provided in emergency situations.
The statute of limitations applies when filing a case under this law, with the time period
starting to run when the injury occurs or is identified by the victim.
As already noted, the standards and statutes vary from state to state. For example,
in the state of Vermont the Good Samaritan Law is titled “Duty to Aid the Endangered
Act.” It contains the following guidelines in the section on emergency medical care:
a. A person who knows another is exposed to grave physical harm shall, to the extent
that the same can be rendered without danger or peril to himself or without inter-
ference with important duties owed to others, give reasonable assistance to the
exposed person unless that assistance or care is being provided by others.
b. A person who provides reasonable assistance in compliance with subsection (a) of
this section shall not be liable in civil damages unless his actions constitute gross
negligence or unless he will receive or expects to receive remuneration. Nothing
contained in this subsection shall alter existing law with respect to tort liability of
a practitioner of the healing arts for acts committed in the ordinary course of his
practice.
c. A person who willfully violates subsection (a) of this section shall be fined not
more than $100,000.
In the Good Samaritan laws of some other states, the scope of immunity for persons
providing or aiding in providing emergency assistance is ambiguous.
Med Tip
The Good Samaritan laws do not protect physicians or their employees from liability while
practicing their profession in their work environment. The laws are meant to encourage
medical professionals to assist with emergencies outside of the work setting. Always check
on the coverage of the Good Samaritan Law in your own state.
62 PART 1 The Legal Environment
Respondeat Superior
Respondeat superior is a Latin phrase meaning, “let the master answer.” Under the
principle of respondeat superior, an employer is liable for acts of the employee within the
scope of employment. What this means for physicians is that they are liable for negli-
gent actions of the employees working for them even though the employer’s conduct
may be without fault. The employee’s wrongful action must be within the scope of their
employment. This means that the employer has assumed the right and obligation to
control the employee’s performance of duties (see Figure 3.3).
FIGURE 3.3 Physician Working
with Rest of Health Care Team
Med Tip
Even though the doctrine of respondeat superior mainly refers to the employer, in all states
both the physician and the employee may be liable.
In effect, when a physician delegates certain duties to staff employees—nurses,
physician assistants, and medical assistants—the ultimate liability for the correct per-
formance of those duties rests with the physician. For example, in the case of Thompson
v. Brent, a medical assistant removed a cast from Thompson’s arm with an electrically
powered saw, known as a Stryker saw. While sawing through the cast, the medical assis-
tant cut the plaintiff’s arm, causing a scar almost the length of the cast and the width of
the saw blade. The court held that even though the medical assistant was negligent in
the use of the saw, the physician was liable for the assistant’s actions under the doctrine
of respondeat superior (Thompson v. Brent, 245 So.2d 751, La. Ct. App. 1971).
In similar cases, the courts have consistently found both the employer and the
health care employee negligent. In the case of Goff v. Doctors General Hospital, the court
held that the nurses who attended a mother in labor, and who knew that she was bleed-
ing excessively, were negligent in failing to report the circumstances so that prompt
measures could be taken to safeguard her life. (She died at the hospital.) (Goff v. Doctors
General Hospital, 333 P.2d 29, Cal. Ct. App. 1958).
In some cases the hospital may also incur liability under this doctrine. The best
known case in which a nurse failed to bring the condition of the patient to the doctor’s
attention was Darling v. Charleston Community Memorial Hospital. This case involved a
minor patient who sued a hospital and a physician for allegedly negligent medical and
hospital treatment, which resulted in the amputation of the patient’s right leg below
his knee. On November 5, 1960, the 18-year-old plaintiff broke his leg while playing
football. At the hospital emergency room, his leg was set and placed in a cast, and he
was hospitalized. He complained of great pain in his toes, which became swollen, dark,
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 63
and eventually cold and insensitive. Over the next few days, the physician relieved the
pressure in the cast by “notching” the cast and cutting it three inches above the foot. On
November 8, the physician split both sides of the cast, cutting the patient’s leg as the
cast was removed. Blood and seepage were observed coming from the leg as the cast
was removed. The plaintiff was eventually transferred to another hospital on November
19 under the care of a specialist. After several attempts to save the plaintiff’s leg, it was
finally amputated eight inches below the knee. The plaintiff’s attorney argued that it
was the duty of the nurses to check the circulation of the leg frequently and the duty of
the hospital to have, at the bedside, a staff of trained nurses who could recognize gan-
grene of the leg and bring it to the attention of the medical staff. If the physician failed
to act, it was the duty of the nurse to then advise hospital authorities so that medical
action could be taken. In this famous case, the court found liability existed on the part
of all three: the physician, the hospital, and the nurse (Darling v. Charleston Community
Mem. Hosp., 211 N.E. 2d 253, 1965).
Employee’s Duty to Carry Out Orders
Health care employees have a duty to interpret and carry out the orders of their
employer/physician. They are expected to know basic information concerning pro-
cedures and drugs that may be used. The nurse or other health care professional has
a duty to clarify the physician’s orders when they are ambiguous or erroneous. If the
procedure or drug appears to be dangerous for the patient, the health care professional
has a duty to decline to carry out the orders and should immediately notify the physi-
cian. In the case of Cline v. Lund, a hospital was held liable for the death of a patient
because a nurse failed to check the patient’s vital signs every 30 minutes as ordered by
the physician. The nurse also failed to notify the physician when the patient’s condition
became life threatening (Cline v. Lund, 31 Cal. App.3d 755, 1973).
Med Tip
Health care workers have a duty to be assertive and question those orders that they believe
are erroneous or appear to be harmful to the patient. They also have a duty to refuse to
carry out orders that violate their own practice acts.
Scope of Practice
Every employee in a medical setting must clearly understand and work within the
scope of practice for his or her discipline. Scope of practice refers to the activities a
health care professional is allowed to perform as indicated in their licensure, certifica-
tion, and/or training. This means that a nurse can legally, through licensure, provide
care and treatment to patients that a medical assistant is not licensed or certified to per-
form. For example, in some states a nurse may be permitted to renew medical prescrip-
tions, with the physician’s knowledge and authority, to a pharmacy over the telephone.
A medical assistant is not licensed to do this. A trained and certified medical assistant
can draw a sample of blood from a patient and perform certain tests on the sample,
such as a blood count. However, a nurse’s aide is typically not qualified or certified to
perform these procedures.
It is imperative that employees understand and practice within the guidelines of
their profession. However, the physician/employer also has a responsibility to instruct
members of the health care team to perform activities that are within their respective
scope of practice.
In addition, a physician/employer must clearly designate a chain of command for
the health care team, assigning a person to oversee the functions of the health care team.
In some cases, the physician assumes this duty. However, a nurse manager may also
64 PART 1 The Legal Environment
be designated for this role. In some medical offices, medical assistants can assume this
function due to the intensive administrative portion of their training. Each employee
must understand the chain of command so that when a question occurs regarding
patient treatment or procedure, there is a clear route for obtaining the correct answer.
A clear chain of command provides a “fail-safe” mechanism so that no employees are
left to make decisions that they are unqualified to make.
Med Tip
All employees must understand that there are limits to their authority when it comes to
health care decisions. The ultimate decision always rests with the physician, provided it
does not violate their professional practice.
Employer’s Duty to Employees
Physicians/employers have a responsibility to provide a safe environment for their
employees and staff. However, accidents and unforeseen incidents do happen while
performing work-related tasks, such as theft, fires, auto accidents, and injuries from
falls. Most physicians have liability insurance to cover any injuries or thefts occurring
on the owner’s grounds and within the buildings. They may also bond employees
who handle money. Bonding is a special type of insurance made with a bonding com-
pany that covers employees who handle financial statements, records, and cash. If the
employee embezzles (steals) money from the physician/employer, the physician can
then recover the loss up to the amount of the bond.
Some physicians also carry liability insurance to cover the employee who has an
automobile accident while conducting work-related business, such as making a bank
deposit, for the employer.
Just as employers have a duty to provide a safe work environment, the employee
has a duty to the employer to maintain this safe environment. Health care workers are,
by the very nature of their work, surrounded with equipment and drugs that could be
dangerous if misused. For example, employees must use caution when handling elec-
trical equipment with multiple cords. Yanking an electrical cord out of the wall instead
of gently pulling it out at the wall socket can result in an electric spark to occur. Even a
simple act such as wiping up a spill on the floor can cause an injury if a “Wet Floor” sign
is not posted. Most physicians’ offices and all hospitals have a multitude of medications,
including narcotics, that must be kept locked at all times.
In addition, it is an employee’s duty to refrain from discussing his or her employ-
er’s personal life with patients and coworkers.
Risk Management
Risk management is a practice used to control or minimize the incidence of problem
behavior that might result in injury to patients and employees and ultimately to liability
for the physician/employer. A key factor in risk management is to identify problem
behaviors and practices in an organization such as a hospital or medical office. A plan of
action is then put into practice to eliminate these problem behaviors. Risk management
factors include environmental issues such as wet floors, improper grounding of electri-
cal equipment, and poor security. Risk factors that affect employees include poor record
keeping, improper storage of drugs and needles, improper follow-up for patient care,
and abandonment of patients. Corrective actions for these factors are often addressed
in updated policies and procedures books and employee handbooks. Many offices and
hospitals employ risk managers whose sole job is to oversee the practices and behaviors
that might harm patients and even result in malpractice suits (see Figure 3.4).
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 65
Two of the most frequent accidental errors in health care are patient falls and medi-
cation errors. It is often difficult to know which patients may need assistance. Therefore
it is wise to prevent a possible problem by making sure that every patient is carefully
observed when walking or moving in or out of bed or a wheelchair. A nurse or trained
caregiver should always be in assistance if the patient is unsteady, feeble, elderly, or
has recently had surgery.
When performing medication administration all medication orders must be
checked for accuracy three times: once when selecting the medication; once prior to
preparing the medication; and once more before administering the medication. This is
known as the Triple Check method (or the Three Checks). In addition, the correct route
of administration, as well as the time of dispensing the medication, must be recorded.
Medical errors have occurred for a variety of reasons, including:
• Inaccurate identification of patients (Always identify the patient by calling patients
by their full name and date of birth.) If the patient is wearing an identification band,
that can be used as part of the identification process.
• Transcription errors when placing the drug name and dose into the patient’s chart
• Failure to double-check the dosage before administering a medication
• Administering the incorrect medication or dosage
• Administering an experimental medication without obtaining informed consent
from the patient
• Illegible handwriting when charting
Remember the “Seven Rights” for administration of medications: right patient; right
drug; right dose; right route; right time; right reason for the drug; and right documenta-
tion into the patient’s chart.
FIGURE 3.4 Everyone Must Par-
ticipate in Risk Management
Med Tip
Everyone in a health care institution—not just the risk manager—is responsible for risk
management.
Incident Report
One means of documenting problem areas within a hospital or other medical facility
is the incident report. This report, using a form developed by the individual facility,
should be completed whenever there is an unusual occurrence such as a fall, error in
66 PART 1 The Legal Environment
medication dispensing, needle sticks, fire, or a patient or employee complaint. An inci-
dent report can be completed by anyone who observed or became aware of an unusual
occurrence or incident such as an employee, manager, or physician. The purpose of the
report is to document exactly what happened, when it happened, and what was done
about the incident. The goal of using an incident report immediately after the situation
happened is to accurately recall what happened as well as to prevent another incident.
Chapter Review
Points to Ponder
1. If a patient who suffers from cirrhosis tells me in
confidence that she has started drinking again, what
should I do?
2. Does respondeat superior mean that I am fully pro-
tected from a lawsuit? Why or why not?
3. Does the Medical Practice Act in my state allow a
registered nurse to prescribe birth control pills for
patients? Why or why not?
4. Is it really beneficial for me to become a licensed or
certified member of my profession? Why or why
not?
5. Am I expected to maintain the same standard of care
for patients that my physician/employer is held to?
6. Am I protected by Good Samaritan laws if I perform
CPR on a patient in a hospital emergency room wait-
ing area and the patient dies?
7. Am I protected from a lawsuit if I have reported a
medical emergency to my supervisor that I did not
believe I was capable of handling?
8. If an injury occurred four years ago, am I protected
from a lawsuit if the statute of limitations is two years
in my state?
3
Discussion Questions
1. A patient collapses on the floor in your department
(office) and you must administer CPR. If the patient is
injured when you administer CPR, are you protected
from a malpractice suit under the Good Samaritan
laws?
2. Describe the process Dr. Williams might use to
become licensed to practice medicine when she moves
from Chicago to New York.
3. Describe what reasonable and prudent means as it
relates to standard of care.
Review Challenge
Short Answer Questions
1. What are some of the duties that an employee has to
his or her employer as discussed in this chapter?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. Does the doctrine of respondeat superior always pro-
tect the employee? Explain why or why not.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 67
3. When does the “discovery rule” begin to “run”?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What is the purpose of The Joint Commission?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. Explain the difference between endorsement and reci-
procity for licensure.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What does “standard of care” mean and why is it
important?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. Explain the “prudent person rule” as it relates to the
patient.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Who or what determines the length of time for the
statute of limitations?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. endorsement
_____ 2. guardian ad litem
_____ 3. revoked
_____ 4. respondeat superior
_____ 5. statute of limitations
_____ 6. discovery rule
_____ 7. reciprocity
_____ 8. standard of care
_____ 9. Good Samaritan Laws
_____ 10. nonrenewal of license
COLUMN B
a. begins at the time the injury is noticed or should have
been noticed
b. ordinary skill that medical practitioners use
c. “let the master answer”
d. court-appointed representative
e. law to protect the health care professional
f. period of time that a patient has to file a lawsuit
g. sanction
h. when a medical license is taken away
i. practicing medicine without a license
j. one state granting a license to a physician in another
state
Multiple Choice
Select the one best answer to the following statements.
1. According to the Medical Patients Rights Act, patient
information
a. may be given over the telephone without the
patient’s consent.
b. must be communicated on a need-to-know basis.
c. can always be given out to another physician.
d. other than test results, cannot be given out to a
relative.
e. can never be given out to a third party.
68 PART 1 The Legal Environment
2. The term for a court-appointed person to represent a
minor or unborn child in litigation is
a. respondeat superior.
b. advanced directive.
c. guardian ad litem.
d. durable power of attorney.
e. living will.
3. Standard of care refers to
a. ordinary skill.
b. type of care given to patients by other practitio-
ners in the same locality.
c. only the care given by the physician.
d. a, b, and c.
e. a and b only.
4. The statute of limitations varies somewhat from state
to state but is typically
a. ten years.
b. five years.
c. one to three years.
d. there is no limitation.
e. none of the above.
5. Respondeat superior means that
a. a health care employee can act independently of
the employer.
b. the health care employee is never found negligent
by the courts.
c. the employer is liable for the actions of the
employee.
d. health care employees have a duty to carry out
the orders of their employers without question.
e. all of the above.
6. A process by which a physician in one state is granted
a license to practice medicine in another state is
a. endorsement.
b. reciprocity.
c. statute of limitations.
d. revocation.
e. suspension.
7. Patients’ rights to have their personal privacy
respected and their medical records handled with
confidentiality is covered in the
a. statute of limitations.
b. rule of discovery.
c. FLEX act.
d. Medical Patients Rights Act.
e. Good Samaritan laws.
8. The prudent person rule refers to
a. the needs of a medical assistant.
b. the information that a reasonable patient would
need.
c. the type of employee that a physician would wish
to hire in his or her office.
d. the credentials for a malpractice attorney.
e. none of the above is correct.
9. When a physician places an ambiguous order, the
health care professional
a. has a duty to carry out the order.
b. can decline to carry out the order.
c. should immediately notify the physician.
d. b and c only.
e. none of the above is correct.
10. Both physicians and employees are
a. liable in a lawsuit.
b. have the same responsibility to protect patients’
confidentiality.
c. operate under a standard of care.
d. must be trained to perform a procedure before
attempting it.
e. all of the above.
Discussion Cases
1. Analyze the case at the beginning of this chapter, “The
Case of Latoya and the Physical Therapy Patient,” by
answering the following question:
a. How can Latoya balance the benefits and harm of
encouraging her patients to do something they do not
want to do?
____________________________________________
____________________________________________
CHAPTER 3 Essentials of the Legal System for Health Care Professionals 69
2. You are a phlebotomist drawing a specimen of blood on
Emma Helm, who says she doesn’t like having blood
drawn. In fact, she tells you that the sight of blood makes
her “queasy.” You attempt to make her feel relaxed by qui-
etly talking to her as you help her onto a chair in the hos-
pital laboratory. While you are taking her blood specimen,
she faints and hits her head against the side of a cabinet.
a. Are you liable for Emma’s injury? Why or why not?
____________________________________________
____________________________________________
b. If you are not liable, do you know who is?
____________________________________________
____________________________________________
c. Is Emma Helm at fault for her accident? Why or why
not?
____________________________________________
____________________________________________
d. What might you do to prevent this type of injury from
happening?
____________________________________________
____________________________________________
3. Jessica, a registered nurse (RN), and her husband were
finally leaving on their vacation trip. They pull up to a red
light as it is about to change to green. They watch in hor-
ror as a large truck, moving fast down a hill, is unable to
stop before crashing into a van carrying a mother and her
child. The van is thrown into the air and lands in a small
park. Jessica runs over to offer aid. She finds a semicon-
scious woman in the driver’s seat and an unconscious
4-year-old boy in the back seat strapped in his car seat.
The mother asks Jessica if Christopher is all right before
she slips into unconsciousness. Christopher is uncon-
scious and not breathing, with his head down and chin
touching his chest. He has a gash bleeding on the side of
his head caused by his tricycle flying over the backseat
during the crash.
A truck driver, who had also stopped to give help, yells in
the window at Jessica, “Don’t move him!” Jessica knows
that she has to get Christopher’s breathing started. Even
though the truck driver is still yelling at her not to move
the boy, with her index finger she gently lifts his head an
inch up off his chest. Christopher, still unconscious, starts
breathing immediately. Jessica stops the bleeding on his
head by applying pressure using a clean handkerchief
from her husband. Emergency help arrives 10 minutes
later.
a. In your opinion, even though Jessica knew that, in
most cases, an injured victim should not be moved, did
she do the right thing by moving Christopher’s chin up
so he could breathe?
____________________________________________
____________________________________________
b. Was Jessica covered by the Good Samaritan Act or
was she held to a higher standard because she had a
nursing license?
____________________________________________
____________________________________________
c. Would Jessica have been covered by the Good Samar-
itan Act if Christopher had not started breathing when
she moved his head and he had suffered further injury
from the movement?
____________________________________________
____________________________________________
d. Was Jessica, an RN, legally required to stop and pro-
vide aid? Was she ethically obligated to stop and pro-
vide aid?
____________________________________________
____________________________________________
e. In your opinion, is it always a good idea to stop and
give assistance at an accident site before medical help
arrives?
____________________________________________
____________________________________________
Put It Into Practice
Search the newspapers in your area for an article relating to medical malpractice or
medical ethics issues. Discuss whether the standard of care was violated in the situation
discussed in the newspaper.
Web Hunt
Using a search engine, find out about the Good Samaritan laws in your state.
70 PART 1 The Legal Environment
Critical Thinking Exercise
What would you do if you were just certified in CPR last week and a large woman col-
lapsed in front of you on a very crowded bus? Her color is very dusky and she does
not appear to be breathing. No one on the bus does anything. You are worried that
you will do something wrong and might even hurt her with the chest compressions.
Besides—everyone will be looking at you.
Bibliography
American Medical Association. 2016. Code of medical ethics: Current
opinions on ethics and judicial affairs. Chicago: American Medical
Association.
Badasch, S., and D. Chesebro. 2009. Health Science Fundamentals. Upper
Saddle River, NJ: Prentice Hall.
Beaman, N., and L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Black, H. 2014. Black’s law dictionary (8th ed.). St. Paul, MN: West
Publishing.
Cross, N., and D. McWay. 2017. Stanfield’s Introduction to the Health
Professions Burlington, MA: Jones & Bartlett.
Taber’s cyclopedic medical dictionary (21st ed.). 2017. Philadelphia: F. A.
Davis.
71
Chapter 4
Working in Today’s Health
Care Environment
Learning Objectives
After completing this chapter, you will be able to:
4.1 Define all key terms.
4.2 Describe today’s health care environment.
4.3 Discuss the similarities and differences
among health maintenance organizations
(HMOs), preferred provider organizations
(PPOs), and exclusive provider organiza-
tions (EPOs).
4.4 Describe five types of medical practice.
4.5 Discuss the term diplomat as it relates to
medical specialty boards.
4.6 Identify three categories of licensed nurses
and describe their educational requirements.
4.7 Describe five categories of certified health
care professionals.
4.8 Describe the diagnostic related group (DRG)
system of classification.
4.9 State the differences between Medicare and
Medicaid.
Key Terms
Associate practice
Capitation rate
Certification
Conscience clause
Copayment
Corporation
Delegation
Diagnostic related groups (DRGs)
“Donut hole”
Exclusive provider organization
(EPO)
Fee splitting
Fixed-payment plan
Franchise
Franchisee
Gatekeeper
Group practice
Health Care Quality Improvement
Act (HCQIA)
Health maintenance organization
(HMO)
Indigent
Licensure
Managed care organization (MCO)
Medicaid
Medicare
National Practitioner Data Bank
(NPDB)
Partnership
Per diem
Preferred provider organization
(PPO)
Primary care physician (PCP)
Prospective payment system
Registration
Sole proprietorship
Solo practice
Third-party payers
72 PART 1 The Legal Environment
Introduction
Today’s health care professionals are immersed in an ever-changing environment.
The advent of managed care, a variety of medical practice arrangements, and a mul-
titude of health care specialty areas have resulted in the continual need to understand
health care law. Unfortunately, because of the rise in the number of malpractice suits,
many physicians are protecting themselves by ordering multiple testing procedures,
some of which might not be needed. In addition, many patients no longer want older,
more conservative approaches to testing and diagnosis—and the newer tests may be
more expensive.
As demonstrated in the previously mentioned case, all health care professionals
need to pay attention to the wishes of their patients. And in circumstances where the
patient has given family members or others authority to make a health care decision
on their behalf, health care professionals must respect the patient’s wishes. They also
should use care not to place their own opinions ahead of the decisions made by physi-
cians and other health care professionals in consultation with the patient. However,
ethical dilemmas arise when the health care professional’s moral and religious beliefs
conflict with his or her role in health care. There are no easy, or perfect, answers to
these dilemmas.
Today’s Health Care Environment
Health care has undergone major changes since 1965 when Medicare and Medicaid
became law.
The growth rate of the older adult population and the remarkable technological
discoveries and applications, such as heart and kidney transplants and mobile mam-
mogram units, are just a few of the developments that have caused a rapid expansion
The Case of Marion and the Pacemaker
Marion is a 92-year-old patient who weighs 78 pounds. She has
had poor eating habits for at least 20 years. In addition, Marion
had been a heavy smoker all her life and suffered frequent respira-
tory problems. During the past two years she has become quite
forgetful, has suffered a broken hip as a result of a fall out of
bed, and has been treated for pneumonia. In spite of Marion’s
protests, she is admitted to a nursing home. However, she quickly
adjusts to her new home and likes the care and the attention that
she receives.
During her third week in the nursing home, Marion devel-
ops a cough, high temperature, and respiratory problems. She
is hospitalized with a diagnosis of pneumonia. The attending
physician suggests that, in addition to treatment for pneumonia,
Marion will also need to have a pacemaker inserted to regulate
her heartbeat.
Marion clearly explained to her family her wishes not to receive
extraordinary measures to prolong her life. She also signed a liv-
ing will indicating her wishes. After thoughtful discussions with
other family members, Marion’s daughters tell the physician that
they do not want to put their confused mother through the surgi-
cal procedure and the pain while recovering from the surgery.
Further, they are concerned that their mother will not survive an
anesthetic and surgical procedure in her frail condition.
The physician seems to be understanding of this decision.
He says that he will place into Marion’s chart their request not
to have the pacemaker inserted. However, the floor nurses take
the daughters aside on several occasions to tell them that this
is not a dangerous procedure and that they should sign a permit
for surgery. The nurses make the daughters feel that they are
not acting in their mother’s best interests by not signing the
surgical permit. Marion returns to the nursing home without a
pacemaker. She lives another four years without any cardiac
problems.
1. Were the nurses carrying out their responsibility
as licensed health care professionals or were they
overstepping their role?
2. Were Marion’s daughters acting in the best interests
of their mother in opposing the proposed pacemaker
surgery?
3. What should happen when a physician agrees with the
family members and the nursing staff does not?
CHAPTER 4 Working in Today’s Health Care Environment 73
of the health care system. In addition, insurance companies, managed care plans—such
as health maintenance organizations (HMOs), which stress preventive care and patient
education—and government legislation have significantly impacted the way health
care is delivered.
Currently, about $3 billion a day is spent on health care in the United States.
However, this does not mean that all Americans are receiving good care, or even any
care. We, as a nation, are far from the top in life expectancy at birth. Traditionally, the
emphasis in health care has been on quality. However, with rising health care costs,
many U.S. citizens are concerned about the cost of services and access to medical care.
Another critical issue is the crisis in health insurance coverage as many Americans do
not have adequate medical insurance.
Health insurance includes all forms of insurance against financial loss resulting
from illness or injury. Private health insurance is more than a $200 billion business
annually. The most common type of health insurance covers hospital care. Relatively
new types of insurance are the fixed-payment plans. These are offered by organizations
that operate their own health care facilities or that have made arrangements with a
hospital or health care provider within a city or region. The fixed-payment plan offers
subscribers (members) complete medical care in return for a fixed monthly fee. HMOs,
for example, base their operations on fixed prepayment plans.
Insurance companies and other third-party payers, such as HMOs, recognize that
persons who are well covered by medical insurance have no incentive to economize.
Insurers, however, want to keep their costs for reimbursement as low as possible. Physi-
cians may want to order more tests to avoid malpractice suits. Patients want adequate
tests and complete care. Keeping these differing viewpoints in mind, who then decides
on the allocation of the health resources?
Managed Care
Managed care is a method for restructuring the health care system, including delivery
of a broad range of services, financing of care, and purchasing. Managed care provides
incentives to keep costs of health care down by using an administrative structure to
manage the enrolled population of patients. The managed care movement is known for
its goal of offering medical care at lower costs and decreasing the amount of unneces-
sary medical procedures. Managed care provides a mechanism for a gatekeeper, such as
a primary care physician or insurance company, to approve all patient referrals and non-
emergency services, hospitalizations, or tests before they can be provided. A primary
care physician (PCP) acts in a gatekeeper capacity, because he or she is responsible for
the patient’s medical care and any referrals to other physicians or services. However,
patients can select any physician or specialist to treat them.
Managed care organizations (MCOs) pay for and manage the medical care a
patient receives. One of the means an MCO uses to manage costs is to shift some of
the financial risk back onto the physicians and hospitals—when the costs go up, their
income from the MCO goes down. This mechanism poses many ethical dilemmas.
MCOs offer a variety of financial incentives, including bonuses to physicians for reduc-
ing the number of tests, treatments, and referrals to hospitals and specialists. These
incentives can create a conflict of interest for physicians.
Med Tip
One of the fundamental principles of managed care is “managed choice.” Patients have a
choice about their medical care but only within certain parameters that are determined by
the managed care organizations (MCOs).
74 PART 1 The Legal Environment
The offer of financial inducements to physicians who order fewer tests and hospi-
talizations for their patients is a widely discussed concern. Many fear that physicians
may withhold services from patients in order to increase their own profits. Some of the
reasons for these concerns are that MCOs attempt to limit the following:
• Choice of physician
• Treatments a physician can order
• Number and type of diagnostic tests that can be ordered
• Number of days a patient can stay in the hospital for a particular diagnosis
• Choice of hospitals
• Medications a physician can prescribe
• Referrals to specialists
• Choice of specialists
• Ordering of a second opinion for diagnosis and treatment
The managed care movement—with the implementation of health maintenance
organizations (HMOs), preferred provider organizations (PPOs), and exclusive pro-
vider organizations (EPOs)—sought to bring health care costs under control by moni-
toring health care and hospital usage.
• Health maintenance organization (HMO)—a type of managed care plan in which
a range of health care services are made available to plan members for a predeter-
mined fee (the capitation rate) per member, by a limited group of providers (such
as physicians and hospitals). HMOs use a physician as the primary care physician
(PCP) to manage and control the enrolled patient’s medical care. This capitation
rate replaced the former “fee-for-service” rate, which was considered to be more
costly. The HMO places the PCP at some financial risk if there are excessive medical
expenses involved in the patient’s medical care.
• Preferred provider organization (PPO)—a plan in which the patient uses a medi-
cal provider (physician or hospital) who is under contract with the insurer for an
agreed fee in order to receive copayment from the insured. PPOs differ from HMOs
in two main areas: (1) A PPO is a fee-for-service program not based on a prepay-
ment or a fixed monthly fee paid to the health care provider for providing patient
services (capitation rate) as with an HMO—physicians and hospitals designated as
PPOs are reimbursed for each medical service they provide; and (2) PPO members
are not restricted to certain designated physicians or hospitals.
• Exclusive provider organization (EPO)—a new managed care plan that is a com-
bination of HMO and PPO concepts. In an EPO, the selection of providers (such
as physicians and hospitals) is limited to a defined group, but the providers are
paid on a modified fee-for-service (FFS) basis. Unlike a PPO, there is no insurance
reimbursement if nonemergency service is provided by a non-EPO provider.
Federal Assistance Programs
Medicare
Medicare is the federal program that provides health care coverage for three groups of
people: persons age 65 and over; disabled persons who are entitled to Social Security
benefits or Railroad Retirement benefits; and end-stage renal disease patients of any age.
It was established under Title XVIII of the Social Security Act as part of the Social Security
Amendments of 1965. Medicare was designed as a traditional third-party private insur-
ance that emphasized free choice of health care. The accounting details were handled
by private insurance companies, usually Blue Cross and Blue Shield. Medicare expen-
ditures quickly rose beyond the initial projections. In addition, traditional Medicare
CHAPTER 4 Working in Today’s Health Care Environment 75
reimbursement became very complex in both the
administration and review process. This led to
several problems, including a long delay for phy-
sicians and hospitals to receive reimbursement for
providing services (see Figure 4.1).
As a result of the rising costs of the Medicare
program, a rationing of health care under Medicare
has occurred. For example, the first $500 of the hos-
pital care costs may have to be paid by the recipients
once during each benefit period as a deductible;
there is a cutoff of reimbursement of care beyond
60 days; and long-term care is not fully reimbursed.
These cost-saving devices result in a fixed alloca-
tion of health care services for many elderly who
will not use a hospital or nursing home facility
because they cannot afford the deductible payment.
In addition, most Medicare recipients cannot afford
to also pay for supplemental insurance to cover
those costs not covered under Medicare.
Medicare patients have a right to appeal care that may be denied under existing
Medicare rules and regulations. As a result of a court case, new rules by the Department
of Health and Human Services for HMOs went into effect in August 1997. In the case
of Grijalva v. Shalala (Donna Shalala was secretary of the department when the suit was
filed), an Arizona court found that a 71-year-old Medicare patient was denied the right
to appeal when her request for home health care was refused by her HMO. The judge
ruled that the Department of Health and Human Services, which oversees Medicare,
was at fault for failing to force HMOs to follow federal law that mandates allowing
appeals when there are denials for treatment. Under the current rules, a Medicare
patient in an HMO may appeal when there are denials for treatment (Grijalva v. Shalala,
946 F. Supp. 747, Ariz. 1996).
Diagnostic Related Groups (DRGs)
Another method of rationing health care was implemented in 1983, when Medicare
instituted a hospital payment system—diagnostic related groups (DRGs)—that clas-
sifies each Medicare patient by illness. DRGs, now used for all patients, are designa-
tions that categorize diagnoses and treatments into groups that are used to identify
reimbursement conditions. There are currently nearly 1,000 illness categories of medical
conditions under the DRG system.
Hospitals receive a preset sum for treatment of an illness category, regardless of the
actual number of “bed days” of care used by the patient. This method of payment provides
a further incentive to keep costs down. However, it has also discouraged the treatment
of severely ill patients because of the high costs associated with their care. In addition,
patients are often discharged before they are ready to take care of themselves. This has
resulted in hospital readmissions and, in some extreme cases, deaths that could have
been prevented if the patient had remained under hospital supervision a few days longer.
Medicaid
Medicaid is a federal program implemented by the individual states, with the federal
government paying 57 percent of Medicaid expenditures. Enacted at the same time as
Medicare, it provides financial assistance to states for insuring certain categories of the
poor and indigent (a person without funds). There is a growing concern that Medicare
and Medicaid operate at cross purposes, as they serve some of the same beneficiaries,
and that better coordination of the two programs is needed. Cases of abuse and fraud
are reported within both programs. For example, there are cases of physicians and
FIGURE 4.1 A Medicare Health Insurance card.
76 PART 1 The Legal Environment
others employed in the health care field submitting bills for reimbursement under these
two programs for patients they have never treated.
Rationing also takes place in the Medicaid program. For instance, several state
Medicaid programs have resisted funding procedures such as liver transplants. The
state of Oregon voted to abolish Medicaid funding for liver transplants and instead
fund intensive prenatal screening programs. Voters apparently believed that the
millions spent to save a few lives with liver transplants are better spent on effec-
tive prenatal screening that would help to prevent premature births and thus save
more lives.
Individual states enact their own legislation to direct the way funds such as Med-
icaid are spent. Ethical dilemmas surface as patients on Medicaid find they have little
or no access to funds within their own state. For example (and this does unfortunately
happen), hospitals have gotten themselves into trouble for discharging a patient too
early. Hospitals have been found guilty for negligently discharging patients because
adequate discharge planning was not implemented.
Medicaid patients in long-term-care facilities are required under the law to use
their own excess income to help pay for their care. This means that they must use up
their own income before Medicaid will assist them. This has proved to be a burden for
married couples, because it may impoverish the spouse as well as the patient. Some
states have enacted laws in which the spouse may separate his or her financial resources
from the patient’s. In other words, the total amount of resources is divided in half so as
not to leave the patient’s spouse without a home or other resources. Some states offer
nursing homes a per diem, or daily rate, payment for a patient’s care. Other states may
use a prospective payment system in which the payment amount or reimbursement
for care is known in advance.
Ethical Considerations of Managed Care
Managed care, including Medicare and Medicaid, has many flaws. Because the basis
for a managed care approach is an economic one of cost containment, those who know
how to use the system will fare better than the poor and less educated. The wealthy
patient may receive better care than the poor patient. For example, the wealthy Medi-
care patient may be able to carry a supplemental health insurance policy to cover the
items, such as prescription medications and long-term care, that are not fully covered
under Medicare. Other ethical considerations and questions concerning managed care
include the following:
• Some physicians will not accept patients who are on Medicare. They are concerned
that the reimbursement is not sufficient to treat patients who may require a great
deal of care as they age.
• Many believe it is difficult, if not impossible, to provide a decent minimum stan-
dard of care or treatment to everyone under the managed care concept.
Med Tip
High costs of medications for patients on Medicare and Medicaid has meant that some
elderly and disabled patients resort to splitting pills in two or skipping them entirely. This
can result in further hospitalization. In addition, there is often a “donut hole” or gap,
causing an amount of out-of-pocket costs the patient must pay for medications even
though they are on Medicare. In some cases, the poor, elderly, and disabled have gone
hungry in order to pay for their life-saving medications.
CHAPTER 4 Working in Today’s Health Care Environment 77
• Are all the families and patients who agree to a managed care contract at the closest
clinic fully informed of the consequences of trying to obtain health care elsewhere?
• Is a bait-and-switch approach being used by the MCO in which the patient is lured
into joining a managed care plan only to realize that only minimal services are
provided in such areas as rehabilitation or long-term care?
• Are the patient’s interests being sacrificed to the bottom line? In other words, does
a profit for the MCO become more important than the patient?
• Do the wealthy have better access to care and treatment?
Medicare and Medicaid laws prohibit physicians referring their patients to any service,
such as physical therapy or dialysis centers, in which they may have a financial owner-
ship or interest. In addition, physicians must be cautious that their patient charges do
not violate Medicare’s fee-for-service reimbursement rule.
Managed care poses the question of how to maximize the services available to the
maximum number of people. This ideal equity approach would bring access to health
care for all at an appropriate level. This would result in a relationship between access,
cost, and quality of care. However, changing any one of these three elements (access,
cost, or quality of care) impacts the other two areas. For example, if we provide more
access to care without increasing the cost, then quality will be negatively affected. If
there is a proposal to increase quality and access to care, then there will be an increase
in cost. In the current health care system, the public perception is that managed care
has sacrificed quality and access for cost.
In spite of the potential problems with managed care, it is not an inherently unethi-
cal system of health care. Under this system, monitoring and control of the excessive
use of testing and surgical procedures have improved. In addition, a reputable MCO
can provide better preventive programs and health care screening for early detection
of disease. It can also reduce the unnecessary testing, treatments, and hospitalizations
that were present under the old fee-for-service system.
Health Care Quality Improvement Act of 1986
Congress passed the Health Care Quality Improvement Act (HCQIA) in response to a
growing concern about medical malpractice. The act provides for peer review of physi-
cians by other physicians and health care professionals. The act also provides protection
from lawsuits (liability) that whistleblowers may face when they report issues of poten-
tial malpractice. The main purpose of this act is to improve the quality of medical care.
The act also sets up a National Practitioner Data Bank (NPDB), which assists with the
peer review of physicians. The NPDB collects information about physicians’ medical
malpractice losses and settlements, investigations into licensure, and other damaging
professional conduct. The NPDB has become a resource for organizations such as state
licensing boards that require information about the qualification of doctors and dentists
in particular. This information has become a necessary requirement when physicians are
seeking medical staff hospital privileges. The data bank does not disclose this informa-
tion to the general public.
Types of Medical Practice
In the early part of the 20th century, the main form of medical practice was the solo
practice set up by a family practitioner within a designated town or geographic area.
Over the years, the practice of medicine and the legal environment have changed. Few
physicians make house calls any longer. However, patients now expect to be able to
reach their physicians on a 24-hour basis.
78 PART 1 The Legal Environment
Other forms of medical practice have become popular, including some that meet
patient needs for around-the-clock coverage and some that provide the opportunity for
a group of physicians to share insurance premium costs, staff, and facilities investments.
Solo Practice
In solo practice, a physician practices alone. This is a common type of practice for
dentists. However, physicians generally enter into agreements with other physicians to
provide coverage for each other’s patients and to share office expenses. Physicians are
becoming increasingly reluctant to enter into solo practice because of the large burden
of debt they incurred during their medical training and the high cost of operating an
independent office.
A type of solo practice called sole proprietorship is one in which a physician may
employ other physicians and pay them a salary. However, the sole proprietor of the
medical practice is still responsible for making all the administrative decisions. The
physician–owner pays all expenses and retains all assets.
The advantages of this type of practice include being able to retain all of the profits
and to make the major decisions concerning policies and staffing. However, in a sole
proprietorship, the owner is responsible and liable for the actions of all the employees.
In addition, the physician may have to work long hours to provide his or her patients
with the care they need. It is often difficult to find the correct balance of qualified phy-
sicians to help out during vacations and illnesses of the solo practitioner. This form of
practice is diminishing rapidly because of increasing expenses and the lack of another
physician to share the patient load.
Partnership
A partnership is a legal agreement to share in the business operation of a medical
practice. A partnership may exist between two or more physicians. In this legal arrange-
ment, each partner becomes responsible for the actions of all the other partners. This
responsibility includes debts and legal actions unless otherwise stipulated in the part-
nership agreement. It is always advisable to have partnership agreements in writing. A
document or “certificate of doing business as partners” is registered in the local county
clerk’s office.
The advantages of a partnership include greater earning power than a physician
just working alone can realize. There are also other physicians in a partnership to carry
any burden of patient care, liability, overhead expenses, or capital requirements to
improve the office facility. The disadvantages often relate to personality conflicts. In
addition, all the partners in the group must share in the liabilities even if only a few of
the members are responsible for incurring them (see Figure 4.2).
Associate Practice
The associate practice is a legal agreement in which physicians agree to share a facil-
ity and staff but not the profits and losses. They do not generally share responsibility
for the legal actions of each other, as in a partnership. The legal contract of agreement
stipulates the responsibilities of each party. The physicians act as if their practice is a
sole proprietorship.
Med Tip
The increase in the number of patients who have initiated malpractice lawsuits has
necessitated not only increased insurance coverage costs for physicians and patients but
also different methods of practice.
CHAPTER 4 Working in Today’s Health Care Environment 79
The legal arrangement of an associate practice must be carefully described and
discussed with patients. Patients may mistakenly believe that there is a shared respon-
sibility by all the physicians in the practice. This can lead to legal difficulties if one
physician is accused of committing malpractice.
FIGURE 4.2 Physicians in Partnership
Group Practice
A group practice consists of three or more physicians who share the same facility
(office or clinic) and practice medicine together. This is a legal form of practice in which
the physicians share all expenses and income, personnel, equipment, and records.
A physician may be a member of a group practice as a partner or as an employee. Some
areas of medicine frequently found in group practice are anesthesiology, rehabilitation,
obstetrics/gynecology, radiology, and pathology. The membership of a group practice
can be quite large, and thus it may be a difficult setting to work in for those who prefer
to work alone. In some cases, the income level may not be as high as in a more limited
type of partnership because of the large number of physicians creating the expenses
(see Figure 4.3).
A group practice can be designated as an HMO or as an independent practice
association (IPA). Group practices have grown rapidly during the last decade, and large
groups of more than 100 doctors are not uncommon. A large group practice often forms
a legal professional corporation.
Professional Corporations
During the 1960s, state legislatures passed laws (statutes) allowing professionals—for
example, physicians and lawyers—to incorporate. A corporation is managed by a board
of directors. There are legal and financial benefits to incorporating the practice.
Professional corporation members are known as shareholders. Some of the
benefits that can be offered to employees of a corporation include medical expense
Med Tip
To avoid the appearance that a partnership exists when one does not, physicians must be
sure the signage on their offices, their letterhead and other stationery, and the manner in
which the staff answers the telephone are not misleading.
80 PART 1 The Legal Environment
reimbursement, profit sharing, pension plans, and disability insurance. These fringe
benefits may not always be taxable to the employee and are generally tax deductible to
the employer. While a corporation can be sued, the individual assets of the members
cannot be touched (as they can in a solo practice). In some cases, a physician in solo
practice will take legal steps to incorporate in order to provide some protection of assets.
A corporation will remain until it is dissolved. Other forms of practice, such as the sole
proprietorship, end with the death of the owner. Today, most medical practices are cor-
porations. Table 4.1 describes the types of medical practice along with the advantages
and disadvantages of each.
Type of Practice Advantages Disadvantages
Solo practice (only one physician) Physician retains independence; simplicity of
organization; physician retains all assets
Difficulty raising capital; sole responsibility for liability
and management functions; inadequate coverage of
patients’ needs; practice may die with the owner
Sole proprietorship Physician retains all assets; autonomy; physician
hires other physicians to provide assistance
Pays all expenses; responsible for all liability
Partnership Legal responsibility is shared among partners; work,
assets, and income are shared
Partners may have personality differences; all part-
ners are liable for actions of the other partners
Associate practice Work is shared Legal responsibility is not shared by all members
Group practice All expenses and income are shared; all equipment
and facilities are shared
Income may not be as great as when a physician
practices alone; possible personality clashes among
members
Single specialty Expenses and staff are shared Possible competition among specialists within the
group
Corporation Protection from loss of individual assets; many fringe
benefits offered; corporation will remain until it is
dissolved
Income may not be as great as in other forms of
practice
Table 4.1 Types of Medical Practices
FIGURE 4.3 Group Practice
© Robert Kneschke/Fotolia
Med Tip
Physicians are moving away from solo practice and forming partnerships or corporations to
better serve patient needs, share the costs of insurance, and, in the case of corporations,
provide legal protection.
CHAPTER 4 Working in Today’s Health Care Environment 81
The Ethics of Fee Splitting
Fee splitting occurs when one physician offers to pay another physician for the referral
of patients. Fee splitting has long been considered unethical and is a basis for profes-
sional discipline. The payment of a referral fee is also considered a felony in states
such as Alaska, New Mexico, Vermont, and California. However, the most prohibitive
statements against accepting a fee for referrals are at the federal level. The Medicare
and Medicaid programs both contain antifraud and abuse provisions. These provisions
declare that anyone who receives or pays any money, directly or indirectly, for the refer-
ral of a patient for service under Medicare or Medicaid is guilty of a felony punishable
by five years’ imprisonment, a $25,000 fine, or both.
Fee splitting is not the same as referrals to a hospital franchise, such as a pharmacy
or radiology department. In this case, the holder of the franchise, or the franchisee,
may legally pay the hospital in proportion to the amount of business received from
hospital patients.
It is not necessarily considered fee splitting if the franchisee is paying an amount
equal to expenses incurred. For instance, in a California case, a court held that a radiolo-
gist’s payment of two-thirds of his receipts to a hospital did not constitute fee splitting
because the evidence showed that fees paid to the hospital were equal to expenses
incurred by the hospital to furnish the diagnostic center (Blank v. Palo Alto-Stanford Ctr.,
44 Cal. Rptr. 572, Cal. Ct. App. 1965).
Medical Specialty Boards
Of the 9 million people employed in the health care system, there are approximately
600,000 physicians, 35,000 doctors of osteopathy, and 150,000 dentists. Of the 600,000
physicians, only 150,000 practice primary patient care: family medicine, internal medi-
cine, obstetrics, and pediatrics. The majority of physicians work in specialty fields such
as anesthesiology, psychiatry, or a surgical specialty. Many physicians now work in
salaried staff positions in hospitals, as members of group practices, for a corporate-
sponsored medical care firm, or for community clinics.
Currently, 23 specialty boards are covered by the American Board of Medical
Specialists. Included among these specialties are the American Board of Allergy
and Immunology, American Board of Anesthesiology, American Board of Emer-
gency Medicine, American Board of Internal Medicine, American Board of Surgery,
and American Board of Urology. The specialty boards seek to improve the quality of
medical care and treatment by encouraging physicians to further their education and
training. The board evaluates the qualifications of candidates who apply and pass an
examination. The physicians who pass the board review become certified as diplomats.
Med Tip
Remember that in all forms of practice, the physician is responsible for the actions of his
or her employees.
Med Tip
It’s important that the physician’s support staff, including nurses, physician assistants,
certified medical assistants, and technicians, understand the different medical specialty
categories because they are often the ones who respond to patients’ questions regarding
these specialties.
82 PART 1 The Legal Environment
As board-certified physicians, they may be addressed as either diplomats or fellows, a
designation they can use after their name—for instance, Paul Smith, M.D., Diplomat of
the American Board of Pediatrics.
Due to the dramatic advances in medicine over the past two decades, there contin-
ues to be an interest in specialization among physicians. Transplant surgery, including
liver, kidney, lungs, and pancreas, has expanded the need for medical and surgical
specialties. A description of some of the more common medical and surgical specialties
is found in Table 4.2.
Medical Specialty Description
Adolescent medicine Treats patients from puberty to maturity (ages 11 to 21)
Allergy and immunology Treats abnormal responses or acquired hypersensitivity to substances
with medical methods such as testing and desensitization
Anesthesiology Deals with administration of both local and general drugs to induce
a complete or partial loss of feeling (anesthesia) during a surgical
procedure
Cardiology Treats cardiovascular disease (of the heart and blood vessels)
Dermatology Treats injuries, growths, and infections to the skin, hair, and nails
Emergency medicine Focuses on the ability and skills to quickly recognize, prioritize (triage),
and treat acute injuries, trauma, and illnesses
Endocrinology Branch of medicine involving diagnosis and treatment of conditions and
diseases of the endocrine glands
Family practice Treats the entire family regardless of age and gender
Geriatric medicine Focuses on the care of diseases and disorders of the elderly
Hematology Specializes in blood and blood-forming tissues
Hospitalists Specializes in caring for patients while they are in the hospital;
usually trained in internal medicine or family medicine
Infection control Focuses on the prevention of infectious disease by maintaining medical
asepsis, practicing good hygiene, and promoting immunizations
Internal medicine Treats adults who have medical problems
Nephrology Specializes in pathology of the kidney, including diseases and
disorders
Neurology Treats the nonsurgical patient who has a disorder or disease of the
nervous system
Nuclear medicine Specializes in the use of radioactive substances for the diagnosis and
treatment of diseases such as cancer
Obstetrics and gynecology Obstetrics treats the female through prenatal care, labor, delivery, and
the postpartum period; gynecology provides medical and surgical
treatment of diseases and disorders of the female reproductive system
Oncology Treats benign tumors and cancer-related tumors
Ophthalmology Treats disorders of the eye
Orthopedics Specializes in the prevention and correction of disorders of the
musculoskeletal system
Otorhinolaryngology (ENT) Specializes in medical and surgical treatment of the ear (otology), nose
(rhinology), and throat (laryngology)
Pathology Specializes in diagnosing abnormal changes in tissues that are
removed during surgery or an autopsy
Pediatrics Specializes in the care and development of children
Physical medicine/
rehabilitative medicine
Treats patients after they have suffered an injury or disability
Preventive medicine Focuses treatment on the prevention of both physical and mental ill-
ness or disability
Psychiatry Specializes in the diagnosis and treatment of patients with mental,
behavioral, or emotional disorders
Table 4.2 Medical and Surgical Specialties
CHAPTER 4 Working in Today’s Health Care Environment 83
Medical Specialty Description
Radiology Specializes in the study of tissue and organs based on X-ray
visualization
Rheumatology Treats disorders and diseases characterized by inflammation of the
joints, such as arthritis
Surgery Corrects illness, trauma, and deformities using an operative procedure
Surgical Specialty Description
Cardiovascular Surgically treats the heart and blood vessels
Colorectal Surgically treats the lower intestinal tract (colon and rectum)
Cosmetic/plastic surgery Surgically reconstructs underlying tissues
Hand Surgically treats defects, traumas, and disorders of the hand
Neurosurgery (CNS) Surgically intervenes for diseases and disorders of the central nervous
system
Oral (periodontics/
orthodontics)
Treats disorders of the jaws and teeth by means of incision and surgery
as well as tooth extraction; treats malocclusion (misalignment) of teeth
Orthopedic Surgically treats musculoskeletal injuries and disorders, congenital
deformities, and spinal curvatures
Thoracic Surgically treats disorders and diseases of the chest
American College of Surgeons
The American College of Surgeons also confers a fellowship degree upon applicants
who have completed additional training and submitted documentation of 50 surgical
cases during the previous three years. A successful candidate becomes a Fellow of the
American College of Surgeons (FACS).
American College of Physicians
The American College of Physicians offers a similar fellowship and entitles the
applicant to become a Fellow of the American College of Physicians (FACP) in a
nonsurgical area.
The designation doctor (Dr.) is the proper way of addressing—verbally or in writ-
ing—someone who holds a doctoral degree of any kind. In the medical field, the title of
doctor indicates that a person is qualified to practice medicine within the limits of the
degree received; in other fields, the title means that a person has attained the highest
educational degree in that field. Several designations for doctor are listed in Table 4.3.
Designations Abbreviations
Doctor of Chiropractic D.C.
Doctor of Dental Medicine D.M.D.
Doctor of Dental Surgery D.D.S.
Doctor of Education Ed.D.
Doctor of Medicine M.D.
Doctor of Optometry O.D.
Doctor of Osteopathy D.O.
Doctor of Philosophy Ph.D.
Doctor of Podiatric Medicine D.P.M.
Table 4.3 Designations and Abbreviations for Doctors
Med Tip
The term doctor comes from the Latin word docere, meaning “to teach.”
84 PART 1 The Legal Environment
Health Care Professionals and Allied
Health Care Professionals
A physician works with a variety of trained personnel, depending on the area of spe-
cialization. Health care professionals other than doctors, nurses, and pharmacists are
also called allied health care professionals or allied health care practitioners. There are
specific requirements for all health care professionals, including licensure, certification,
and registration as well as a means of establishing competency. In addition, programs
for educating health care professionals may seek accreditation such as through the Joint
Commission on Accreditation of Healthcare Organizations (the Joint Commission). (See
more about the Joint Commission in Chapter 3.)
Licensure, generally issued at the state level, is a mandatory credentialing process
that allows an individual to legally perform certain skills. As dictated by law, there is
usually a requirement to pass certain tests and exhibit the ability to perform certain
skills. For example, nurses and pharmacists must graduate from an accredited educa-
tional program and pass a national examination that shows competency in their cho-
sen medical field. Licensed personnel including registered nurses, nurse practitioners,
licensed practical nurses, and pharmacists are licensed in the state in which they prac-
tice. Licensed medical professionals can place their license in jeopardy, or can even lose
their license to practice their profession, if they abuse drugs or alcohol, steal from their
employer or patients, lie about their education and training, or commit a criminal act.
Certification is a voluntary credentialing process usually offered by a private pro-
fessional organization, such as a school, college, or other accreditation body. Certifica-
tion indicates that the health professional has met the standards set by the certification
entity. The individual programs will have requirements to adequately perform certain
skills. Certified, but not licensed, personnel include physician assistants or registered/
certified medical assistants, certified medical transcriptionists, laboratory technicians,
and ultrasound technologists.
The American Association of Medical Assistants (AAMA), founded in 1956, is a
key association in the field of medical assisting. This organization is responsible for
the medical assistants’ certification process. Certification indicates that a candidate has
met the standards of the AAMA by achieving a satisfactory test result. A certificate, or
legal document, is issued to a person who has successfully passed the examination (see
Figure 4.4).
Registration indicates that a person whose name is listed on an official record or
register has met certain requirements in their particular profession. The registry list of
names can be accessed by health care providers to determine if a potential employee
has met certain requirements. For example, registered nurses’ names are listed in the
FIGURE 4.4 Health Care Professionals Working
Together
CHAPTER 4 Working in Today’s Health Care Environment 85
registry of the state in which they hold a license. The American Medical Technologists
(AMT) association provides oversight for the registration and testing of medical assis-
tants, medical technologists, and phlebotomists. This association in cooperation with
the AMT Institute for Education (AMTIE) has developed a continuing education (CE)
program and recording system.
The AMT, a nonprofit certifying body, provides a Registered Medical Assistant
(RMA) certification for medical assistants who meet the eligibility requirements and
who can prove their competency to perform entry-level skills through written examina-
tion. The RMA is awarded to candidates who pass the AMT certification examination.
Non-physician health professionals cannot practice medicine outside of their own
licensure and expertise. If one acts outside the area of his or her competency and the
patient is injured as a result, that health care practitioner is liable for a charge of mal-
practice or, in other terms, medical negligence. If found to have committed malpractice,
the health care practitioner could be fined and/or lose his or her license or certification.
For example, it is against the law for a licensed practical nurse (LPN) or medical assis-
tant to prescribe medications; this function lies only within the domain of a physician,
nurse practitioner, or physician assistant. A phlebotomist is not licensed to discuss the
results of a patient’s laboratory tests with the patient; only the physician is licensed to
interpret and discuss this information with the patient.
Accreditation agencies for allied health educational programs include the Com-
mission on Accreditation of Allied Health Education Programs (CAAHEP) and
the Accrediting Bureau of Health Education Schools (ABHES). This accreditation,
which is voluntary, requires that the educational facilities maintain particular standards
that usually include an internship. (See Table 4.4 for a description of health care
occupations.)
Occupation Description
Certified Medical Assistant (CMA) Duties are grouped into two categories: administrative and clinical; works in a variety of health
care settings including physicians’ offices and clinics; must graduate from an accredited pro-
gram and pass a national certification exam
Certified Medical Transcriptionist (CMT) Types dictation recorded by a physician or surgeon; must pass a certification exam; works in
medical records departments in hospitals and other health care facilities
Certified Professional Coder (CPC) Evaluates medical orders using the Healthcare Common Procedure Coding System (HCPCS)
used for billing purposes
Dental Assistant Works under the supervision of a dentist to prepare the patient for treatment, take dental
X-rays, and hand instruments to the dentist
Dental Hygienist Works directly with the dental patient to clean teeth, take X-rays, and discuss results of the
patient’s dental exam with the dentist
Electrocardiograph Technologist Operates electrocardiograph (EKG/ECG) machines to record and study the electrical activity
of the heart
Emergency Medical Technician (EMT/paramedic) Provides emergency care and transports injured patients to a medical facility; works for
ambulance service or a hospital
Laboratory or Medical Technologist (MT) Performs laboratory analysis, directs the work of laboratory personnel, and maintains quality
assurance standards for all equipment. Also referred to as clinical laboratory scientist.
Table 4.4 Health Care Professions
(Continued )
Med Tip
Physicians and their staff who assist with hiring personnel have a responsibility to check
the licensure and certification of all employees. For example, patients expect that when
they see the initials R.N. after an employee’s name that person is trained and licensed as
a registered nurse.
86 PART 1 The Legal Environment
Conscience Clause
Because many employees in a variety of health care settings have religious or moral
objections to assisting with certain procedures, such as sterilization and abortion, sev-
eral states have enacted legislation called a conscience clause. These clauses state that
hospitals may choose not to perform sterilization procedures and that physicians and
hospital personnel cannot be required to participate in such procedures or be discrim-
inated against for refusing to participate. In 1979, a Montana nurse-anesthetist was
awarded payment (damages) from a hospital that violated the Montana conscience
clause. The hospital had fired her for refusing to participate in a tubal ligation (Swanson
v. St. John’s Lutheran Hosp., 579 P.2d 702, Mont. 1979).
Occupation Description
Licensed Practical Nurse (LPN) Performs some, but not all, of the same tasks as a registered nurse; must graduate from a
recognized one-year program and become licensed by the National Federation of Licensed
Practical Nurses; works under the supervision of physicians and registered nurses
Medical Records Technician Skilled in health information technology; maintains medical records in health care institutions
and medical practices
Nurse Practitioner (NP) A registered nurse who has additional training in a specialty area such as obstetrics, gerontol-
ogy, or community health; usually usually holds a master’s degree
Occupational Therapist (OT) Provides treatment to people who are physically, mentally, developmentally, or emotionally
disabled in the area of personal care skills with the goal to restore the patient’s ability to man-
age activities of daily living
Pharmacist A licensed professional who orders, maintains, prepares, and distributes prescription
medications
Pharmacy Technician Prepares and dispenses patient medications
Phlebotomist Draws blood from patients; certification is required in some states
Physical Therapist (PT) Provides exercise and treatment of diseases and disabilities of the bones, joints, and nerves
through massage, therapeutic exercises, heat and cold treatments, and other means
Physician Assistant (PA) Assists the physician in the primary care of the patient; requires additional education similar to
a master’s level program; must work or have internship experience and pass an accreditation
exam; works under the supervision of a physician
Registered Nurse (RN) A professional caregiver who has successfully completed a national licensure exam known as
the National Council Licensure Examination (NCLEX)
Registered Medical Assistant (RMA) This allied professional generally works in an ambulatory health care setting; must have at
least five years of experience and on-the-job training or a medical assisting degree
Respiratory Therapist (RT) Evaluates, treats, and cares for patients who have breathing abnormalities
Social Worker Provides services and programs to meet the special needs of the ill, physically and mentally
challenged, and older adults
Surgical Technician Trained in operating room procedures and assists the surgeon during invasive surgical
procedures
Ultrasound Technologist (ARRT) Uses inaudible sound waves to outline shapes of tissues and organs
X-Ray Technologist (radiologic technologist) Uses radiologic technology such as nuclear medicine and radiation
Table 4.4 (Continued )
Med Tip
Patients often refer to anyone wearing a white laboratory coat as “doctor” or a white
uniform as “nurse.” Always correct patients and tell them exactly what your position is.
If you are a student, be sure to wear an identifying badge so that you will not be asked to
perform an action outside of your scope of practice.
CHAPTER 4 Working in Today’s Health Care Environment 87
On the other hand, there have been situations in which employees do not wish to
leave their work setting even though they are morally unable to assist with steriliza-
tion or abortion procedures. In one New Jersey case, a court held that a hospital could
transfer a nurse from the maternity ward to the medical-surgical staff because the nurse
refused to assist in sterilization or abortion procedures. The court ruled that the transfer
was not illegal because the nurse did not lose her seniority and it did not alter her pay
(Jeczalik v. Valley Hosp., 434 A.2d 90, N.J. 1981).
There are numerous examples of health care providers and patients clashing over
the right to refuse to give treatment if it violates a person’s beliefs. This conflict stimu-
lates bitter debate over religious freedom versus patients’ rights. Patients claim their
rights are being ignored. Health care workers claim they are victims of religious dis-
crimination when they are discharged or fired for refusing to provide service or care
to patients. For example, a Chicago ambulance driver refused to transport a woman
who was having an abortion, a Texas pharmacist refused to fill a prescription for a rape
victim who was seeking the morning-after pill, and a California fertility clinic refused
to give assistance to a gay woman who was requesting artificial insemination. Some
respiratory therapists have objected to removing terminally ill patients from ventilators;
gynecologists have declined to prescribe birth control pills; and some anesthesiolo-
gists have refused to provide anesthetics in sterilization procedures or to participate
in executions.
Patient advocates claim that there is a long tradition in medicine that medical pro-
fessionals have an ethical, as well as a professional, responsibility to place the patient’s
needs first. Believers in a “right of conscience” or the “conscience clause” in medicine
believe that U.S. citizens should not be forced to violate their moral and religious values.
This debate is not new. After the 1973 Roe v. Wade decision allowing abortion, several
states passed laws to protect doctors and nurses who did not want to participate in
performing an abortion. Oregon’s law in 1994 to legalize physician-assisted suicide
allows doctors and nurses to decline to participate.
Many such conflicts are quietly and informally handled. In some cases an
employee will seek a position elsewhere; in others, a coworker will step in to assist
with a procedure, usually without the patient’s even knowing of the change. The
ethical dilemma facing both patients and health care workers becomes critical dur-
ing an emergency. This is especially difficult in poor or rural areas where there are
few options for care. There is currently no perfect solution, legal or otherwise, to
this problem.
The Delegation of Duties
The delegation of duties in health care is the transfer of responsibility for a patient’s
care from one caregiver who is in charge of the patients or medical unit to another
caregiver. The ability to delegate or transfer an obligation to perform care to a patient
does not free the person doing the delegation from a duty to see that the care is
correctly performed.
Med Tip
Do not share your views on politics, religion, or sexual orientation with patients in the
medical office or hospital.
88 PART 1 The Legal Environment
Med Tip
The Four A’s of Delegation are:
• Assessment: The needs of the patient must be considered and assessed to determine
the particular level of skill that is needed by the health care provider.
• Assignment: The task to be performed must be clearly explained to a qualified staff
person.
• Authority: The person delegating the task must decide what and how much authority
the person will need to complete the assignment.
• Accountability: The person delegating the authority to another person must provide
adequate supervision that follows the policies and procedures of the organization.
Chapter Review
Points to Ponder
1. What impact will managed care have upon your
career as an allied health professional?
2. What type of practice does your physician/employer
have? If it is not a solo practice, what are the other
specialties involved in the practice?
3. What are the advantages of forming a corporation?
4. Why is it important to include the medical specialty
and initials indicating a particular degree or license
after one’s name?
5. What should you say if a patient refers to you as
“doctor” or “nurse” even though your degree is in
another discipline?
6. How should health care plans balance the interests of
all the enrolled patients with the interests of a patient
who has special medical needs and extraordinary
expenses?
7. In the interest of maintaining a successful practice,
should a physician refuse to provide care for patients
who are uninsured or minimally insured?
8. Consider the question of ethics that arises when we
ask ourselves if we are reducing unnecessary tests, as
the HMOs and others believe we should, or if we are
limiting tests for patients who really need them.
4
Discussion Questions
1. Discuss your role as a medical professional in relation
to the physician and other health care providers.
2. Discuss the impact that managed care is likely to have
on your career in health care.
3. What can be done to ensure that MCOs provide ethi-
cal care for all patients?
4. Discuss “managed choice” as described in this chap-
ter. Is there a choice?
Review Challenge
Short Answer Questions
1. What are the differences between Medicare and
Medicaid?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
CHAPTER 4 Working in Today’s Health Care Environment 89
2. What are the advantages and disadvantages of a
group medical practice for a physician?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. What are some of the areas that might be limited to
patients under an MCO?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. Explain the titles for the following abbreviations:
D.P.M. _________________________________________
O.D. ___________________________________________
D.O. ___________________________________________
D.M.D. _________________________________________
M.D. ___________________________________________
D.C. ___________________________________________
5. Explain the titles for the following abbreviations:
NP _____________________________________________
CMT ___________________________________________
CMA ___________________________________________
RT _____________________________________________
PT ______________________________________________
ARRT ___________________________________________
PA ______________________________________________
RMA ____________________________________________
6. Explain the differences between licensure, certifica-
tion, and registration.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What is the purpose of a conscience clause?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. What is the National Practitioner Data Bank (NPDB)?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
9. Explain the difference between a per diem payment
system and a prospective payment system.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. HMO
_____ 2. EPO
_____ 3. PPO
_____ 4. solo practice
_____ 5. associate practice
_____ 6. sole proprietorship
_____ 7. corporation
_____ 8. third-party payer
_____ 9. Medicaid
_____ 10. Medicare
COLUMN B
a. preferred provider organization
b. physicians agree to share expenses of a facility
c. health maintenance organization
d. managed by a board of directors
e. financial assistance for the elderly
f. exclusive provider organization
g. one physician may employ others
h. financial assistance for the indigent
i. physician practices alone
j. insurance company
90 PART 1 The Legal Environment
Multiple Choice
Select the one best answer to the following statements:
1. Under this plan, a health care provider is paid a set
amount based on the category of care provided to the
patient.
a. AMA
b. DRG
c. ANA
d. HHS
e. UNOS
2. Medicare patients who are members of HMOs may
now, by law,
a. not make any deductible payment.
b. select any physician they wish.
c. appeal a denial of treatment.
d. have all their nursing home expenses paid.
e. none of the above.
3. A type of managed care in which the selection of
providers is limited to a defined group who are all
paid on a modified fee-for-service basis is a(n)
a. exclusive provider organization.
b. group practice.
c. preferred provider organization.
d. health maintenance organization.
e. sole proprietorship.
4. A legal agreement in which physicians agree to
share a facility and staff but not the profits and
losses is a(n)
a. solo practice.
b. sole proprietorship.
c. partnership.
d. associate practice.
e. none of the above.
5. The advantage of a corporation is that it
a. offers protection from loss of individual assets.
b. may offer fringe benefits.
c. will remain in effect after the death of a member.
d. offers the opportunity for a large increase in
income.
e. a, b, and c only.
6. A physician who is board certified may be
addressed as
a. diplomat.
b. fellow.
c. partner.
d. associate.
e. a and b only.
7. MCOs are able to manage costs by
a. shifting some financial risk back to the
physicians.
b. shifting some financial risk back to the hospitals.
c. using a fee-for-service payment method.
d. a and b only.
e. a, b, and c.
8. This federal legislation provides health care for
indigent persons and is administered by individual
states.
a. Medicare
b. Medicaid
c. HMO
d. PPO
e. COBRA
9. The managed care system
a. has a gatekeeper to determine who will receive
medical treatments.
b. provides a mechanism for approval for all
nonemergency services.
c. provides care for a fixed monthly fee.
d. includes HMOs, PPOs, and EPOs.
e. all of the above.
10. The American College of Surgeons confers a
fellowship degree upon its applicants
a. whenever a surgeon places a request.
b. when they complete additional training.
c. when they have documentation of 50 surgical
cases during the previous three years.
d. a, b, and c.
e. b and c only.
CHAPTER 4 Working in Today’s Health Care Environment 91
Discussion Cases
1. Jerry McCall is Dr. Williams’s office assistant. He has
received professional training as both a medical assistant
and an LPN. He is handling all the phone calls while the
receptionist is at lunch. A patient calls and says he must
have a prescription refill for Valium, an antidepressant
medication, called in right away to his pharmacy, because
he is leaving for the airport in 30 minutes. He says that Dr.
Williams is a personal friend and always gives him a small
supply of Valium when he has to fly. No one except Jerry
is in the office at this time. What should he do?
a. Does Jerry’s medical training qualify him to issue this
refill order? Why or why not?
____________________________________________
____________________________________________
b. Would it make a difference if the medication requested
were for control of high blood pressure that the patient
critically needs on a daily basis? Why or why not?
____________________________________________
____________________________________________
c. If Jerry does call in the refill and the patient has an
adverse reaction to it while flying, is Jerry protected from
a lawsuit under the doctrine of respondeat superior?
____________________________________________
____________________________________________
d. What is your advice to Jerry?
____________________________________________
____________________________________________
2. Allison G. has asked her doctor to prescribe a “morning-
after” pill to prevent a pregnancy from taking place. Her
doctor, Dr. Williams, tells her that he cannot prescribe
this pill, which has the ability to abort a pregnancy, based
on his own moral beliefs and conscience. Allison tells his
medical assistant, Amy, that she thinks it is very wrong
of Dr. Williams to impose his religious beliefs upon his
patients. She says that he should not have become a
physician if he could not separate his personal values
from patient care.
a. In your opinion, what should Amy say to the patient?
____________________________________________
____________________________________________
b. Should Dr. Williams let his patients know what his reli-
gious beliefs are when they become his patient? Why
or why not?
____________________________________________
____________________________________________
c. Is there an ethical or legal problem with Dr. Williams’s
action?
____________________________________________
____________________________________________
3. Dennis tells his father that he wishes to study to be a
Physician Assistant (PA). He says, “It’s a great field.
I can work independently and do almost everything the
doctor does without having the high cost of malpractice
insurance.”
a. Is Dennis’s statement to his father correct?
____________________________________________
____________________________________________
b. What does a PA do?
____________________________________________
____________________________________________
c. Will Dennis work independently of a physician if he
becomes a PA?
____________________________________________
____________________________________________
Put It Into Practice
Interview a senior citizen and ask about his or her health insurance needs. Does he or
she have difficulty with the paperwork required by the insurance company? Ask what
could be done to make this a less difficult task.
Web Hunt
Discuss the type of information that is available on the website for the American
Medical Association (www.ama-assn.org).
http://www.amaassn.org/
92 PART 1 The Legal Environment
Critical Thinking Exercise
What would you do if you are processing billing statements for patients and notice that
your physician/employer has entered patient charges for relatively minor procedures
that were never done?
Bibliography
Beaman, N., & L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Cross, N., & D. McWay. 2017. Stanfield’s introduction to health professions.
Burlington, MA: Jones & Bartlett.
Fremgen, B., & S. Frucht. 2019. Medical terminology: A living language.
Upper Saddle River, NJ: Pearson/Prentice Hall.
Freudenheim, M. 2001. A Changing World is Forcing Changes on
Managed Care. New York Times (July 2), 1.
Hall, M., & M. Bobinski. 2014. Health care law and ethics: In a nutshell.
St. Paul, MN: West Publishing.
Managed Care. 2008. ISBA legal health checkup (April 30), 10.
Stein, R. 2006. A Medical Crisis of Conscience. Hartford Courant (August
8), D4.
Tindall, W., W. Williams, J. Boltri, T. Morrow, S. van der Vaart, &
B. Weiss. 2000. A guide to managed care medicine. Gaithersburg,
MD: Aspen.
93
Chapter 5 The Physician–Patient Relationship
Chapter 6 Professional Liability and Medical Malpractice
Chapter 7 Public Duties of the Health Care Professional
Chapter 8 Workplace Law and Ethics
Chapter 9 The Medical Record
Chapter 10 Patient Confidentiality and HIPAA
Part 2
The Health Care Environment
94
Chapter 5
The Physician–Patient
Relationship
Learning Objectives
After completing this chapter, you will be able to:
5.1 Define the key terms.
5.2 Describe the rights a physician has when
practicing medicine and when accepting a
patient.
5.3 Discuss the nine principles of medical ethics
as designated by the American Medical
Association (AMA).
5.4 Summarize “A Patient’s Bill of Rights.”
5.5 Understand standard of care and how it is
applied to the practice of medicine.
5.6 Discuss three patient self-determination acts.
5.7 Describe the difference between implied
consent and informed consent.
Key Terms
Abandonment
Acquired immunodeficiency
syndrome (AIDS)
Advance directive
Against medical advice (AMA)
Agent
Consent
Do not resuscitate (DNR)
Durable power of attorney
Human immunodeficiency virus
(HIV)
Implied consent
In loco parentis
Incompetent patient
Informed (or expressed) consent
Living will
Minor
Noncompliant patient
Parens patriae authority
Patient Self-Determination Act
(PSDA)
Privileged communication
Prognosis
Proxy
Uniform Anatomical Gift Act
The Case of David Z. and Amyotrophic Lateral Sclerosis (ALS)
David, who has suffered with ALS for 20 years, is now hospitalized
in a private religious hospital on a respirator. He spoke with his
physician before he became incapacitated and asked that he be
allowed to die if the suffering became too much for him. The physi-
cian agreed that, while he would not give David any medications to
assist a suicide, he would discontinue David’s respirator if asked
to do so. David has now indicated through a prearranged code of
blinking eye movements that he wants the respirator discontinued.
David had signed his living will before he became ill, indicating that
he did not want extraordinary means keeping him alive.
The nursing staff has alerted the hospital administrator about
the impending discontinuation of the respirator. The administrator
tells the physician that this is against the hospital’s policy. She
states that once a patient is placed on a respirator, the family
CHAPTER 5 The Physician–Patient Relationship 95
Introduction
Few topics are as important as the physician–patient relationship. This relationship
impacts the entire health care team. All health care professionals who interact with the
patient must understand their responsibilities to both the patient and the physician. The
patient’s right to confidentiality must always be paramount.
The first physicians were “medicine men,” witch doctors, or sorcerers. The physi-
cian–patient relationship has come a long way from those early years. In order for the
relationship to exist, both physician and patient must agree to form a contract for ser-
vices. After a doctor has agreed to treat a patient, the patient can expect that the doctor
will provide medical services for as long as necessary (Figure 5.1). In order to receive
proper treatment, the patient must confide truthfully in the physician. Failure to do so
may result in serious consequences for the patient, and the physician is not liable if the
patient has withheld critical information. Medical personnel who work closely with
physicians, such as nurses, physician assistants, and medical assistants, must keep in
mind that the physician–patient relationship is one to be closely guarded by them also.
Any patient information that is either overheard or read is always to be considered
confidential.
Physician’s Rights
Physicians have the right to select the patients they wish to treat. They also have the
right to refuse service to patients. From an ethical standpoint, most physicians treat
patients who need their skills. This is particularly true in cases of emergency.
Physicians may also state the type of services they will provide, the hours their
offices will be open, and where they will be located. The physician has the right to
expect payment for all treatment provided, and a physician can withdraw from a rela-
tionship if the patient is noncooperative or refuses to pay bills when able to do so.
must seek a court order to have him or her removed from this
type of life support. In addition, it is against hospital policy to
have any staff members present during such a procedure. After
consulting with the family, the physician orders an ambulance
to transport the patient back to his home, where the physician
discontinues the life support.
1. What were the primary concerns of the hospital?
2. What was the physician’s primary concern?
3. When should the discussion about the patient’s future
plans have taken place with the hospital administrator?
FIGURE 5.1 The Physician–Patient Relationship
96 PART 2 The Health Care Environment
Duties During a Medical Emergency
A physician cannot ethically or legally turn away a patient who is in an emergency situ-
ation. If the physician is unable to adequately treat the patient, then he or she must call
for emergency assistance from paramedics (a 911 call). For instance, allergy specialists
Physicians have the right to take vacations and time off from their practice and to be
unavailable to care for their patients during those times. It is legally prudent for physi-
cians to arrange for coverage during an absence. In most cases, other physicians will
cover for them and take care of their patients. Physicians should notify their patients
when they will be unavailable.
Some physicians now charge for services such as answering after-hours phone calls
and filling out insurance forms. Many physicians feel that the large increases in their
malpractice insurance premiums and the tighter regulations by HMOs have forced
them to charge for services that they previously performed without charge.
Physician’s Responsibilities
Clearly, a physician’s first responsibility is to be professionally competent. In addition,
a physician must treat all patients with the same standards regardless of race, gender,
sexual orientation, or religion. While a physician has the right to accept or decline to
establish a professional relationship with any person, once that relationship is estab-
lished, the physician has certain responsibilities. For example, federal law and many
state laws prohibit hospitals from giving physicians “kickbacks” of money or other
benefits in return for referring patients. In 1994, NME Psychiatric Hospitals pleaded
guilty to making unlawful payments to physicians in order to induce them to refer
patients to their institutions. NME agreed to pay the federal government $379 million
to settle the case (United States v. NME Psychiatric Hosps., Inc., No. 94-0268).
The physician has many other responsibilities, including ethical ones. The American
Medical Association (AMA) has taken a leadership role in setting ethical standards for the
behavior of physicians. The AMA, organized in 1846, formed its first code of ethics in 1847.
Professional Practice Responsibilities
Medical practice responsibilities include such commonplace routines as effective hand-
washing techniques before touching any patient. While this may seem to be an issue that
hardly needs to be stated, nevertheless, there are serious ethical, legal, and economic
implications when health care personnel ignore these sensible routines. For example, a
survey of over 900 hospitals, cited in the Chicago Tribune, reports that medical mistakes
kill anywhere from 44,000 to 98,000 Americans every year. According to the report,
many often-preventable complications, such as postoperative infections, lead to more
than 32,000 hospital deaths and more than $9 billion in extra costs annually. One of the
most serious complications is post-surgery sepsis (bloodstream infections). Researchers
believe that improved hand washing might reduce these high rates of death.
Med Tip
Failure to practice correct hand washing is considered to be a medical error when it results
in patient infection. All health care professionals must hold themselves to the same high
standards regarding diligent hand washing that we set for physicians. Physicians have
many duties upon entering the practice of medicine. Examples of professional duties are
described in Table 5.1.
CHAPTER 5 The Physician–Patient Relationship 97
Conflict of interest Physicians should not place their own financial interests above the patient’s welfare.
Professional courtesy Historically, there is an unwritten practice among many physicians that they would
not charge each other for professional services. However, this practice has lost favor
because many physicians are concerned about the lack of documentation when see-
ing a fellow physician free of charge.
Reporting unethical conduct of other physicians A physician should report any unethical conduct by other physicians.
Second opinions Physicians should recommend that patients seek a second opinion whenever
necessary.
Sexual conduct It is unethical for the physician to engage in sexual conduct with a patient during the
physician–patient relationship.
Treating family members Physicians should not treat members of their families except in an emergency.
Table 5.1 Examples of Physicians’ Duties
may be unable to give life-saving medications to a stroke victim, because the medica-
tions won’t be available in their offices. However, allergy specialists can handle patients
who are in respiratory distress as well as, or better than, some other medical special-
ists. It is especially important to remember that patients cannot be turned away from a
hospital or physician’s office if they are indigent or uninsured.
Med Tip
Remember that all physicians receive the same basic medical training regardless of their
medical specialty. They and their staff should be able to assist with basic cardiopulmonary
resuscitation (CPR).
Duty to Treat Indigent Patients
In U.S. hospitals, there has been, in the past, a “dumping crisis” of indigent patients
who lack medical insurance. There are many stories of deaths occurring after a patient
has been shuffled from a private hospital emergency department to a public hospital
that accepts indigent patients. While the hospital treatment may not be to blame for
the death, the long delay in treatment while the patient is being transferred might. The
Comprehensive Omnibus Budget Reconciliation Act (COBRA) contains an amendment
(EMTALA) that prohibits “dumping” patients from one facility to another. It is now a
federal offense to do this. (See EMTALA discussed further in Chapter 8.) This amend-
ment does not mandate treatment, but it does require a hospital to stabilize a patient
during an emergency situation.
Does a physician have a duty to treat a patient who is unable to pay? According
to the Summary of Opinions of the Council on Ethical and Judicial Affairs of the AMA
(2016), a physician has the right to select which patients to treat. However, physicians
do not have the same freedom to drop patients once they have agreed to treat them.
The health care professional has the right to earn a living and charge for services, but
from an ethical standpoint, a physician cannot abandon any patient, even in a nonemer-
gency situation. Abandonment might expose the patient to dangers because of lack of
oversight of medications and treatment.
Duty Not to Abandon a Patient
Once a physician has agreed to take care of a patient, this is considered to be a contract
that may not be terminated improperly. Physicians may be charged with abandonment
of the patient if they do not give formal notice of withdrawal from the case. In
addition, the physician must allow the patient sufficient time to seek the service of
another physician. This does not mean the physician may never withdraw from a case.
98 PART 2 The Health Care Environment
Med Tip
There are occasions, such as during vacations, when a physician will ask another physician
to “cover” or take charge of his or her patients. This is not considered to be abandonment.
Med Tip
Office receptionists and nurses need to use care when denying patients an appointment.
In some cases, office personnel believe they are serving the best interests of the physi-
cian by not overloading his or her schedule, but they may be setting up the physician for
a charge of abandonment.
Med Tip
Sending a letter by certified mail is the best method physicians can use to protect them-
selves from a charge of abandonment when they have to sever a relationship with a patient.
Abandonment is considered to be a civil wrong or tort. It can be considered to be
a breach of contract and even negligence. The courts have found the physician–patient
relationship to be that of a contract when they enter into a mutual agreement. The
physician agrees to diagnose and treat the patient until the relationship is over. The
patient agrees to pay the physician for these services. If the physician, who has already
agreed to this mutual contract, does not allow the patient to make an appointment for
treatment, then abandonment may exist.
Abandonment with negligence occurs when the physician terminates the relation-
ship in an unreasonable way as compared with the way other physicians would act in
the same circumstances. For example, if a physician refused to see a patient for follow-
up care after a surgical procedure because the patient or the patient’s insurance com-
pany did not pay the bill, the physician could be liable for damages due to negligence
and abandonment.
The most common types of abandonment include:
• Refusal to treat a patient
• Delayed treatment
• Insufficient or lack of correct treatment
• Withdrawal of treatment without notice
It is a frustration for physicians when patients do not comply with the treatment
plan. Patients can also be frustrated when they do not experience a cure from a physi-
cian. The patient may then terminate the physician–patient relationship by not making
any more appointments to see the physician. However, physicians and their office staffs
must be vigilant about maintaining the relationship until it is terminated in a formal
manner such as a letter sent from the physician to the patient by certified mail with
proof of delivery.
Physicians may decide they can no longer accept responsibility for the medical treat-
ment of a patient because the patient refuses to come in for periodic checkups or take
prescribed medications and treatments. They may even offer referral suggestions. Aban-
donment could occur if the physician does not give enough notice to the patient so that
other arrangements for medical care can be made. There is no one single definition of
abandonment.
CHAPTER 5 The Physician–Patient Relationship 99
Abandonment does not apply just to the physician–patient relationship. Licensed
health care providers, such as dentists, podiatrists, physician assistants, and nurse prac-
titioners, are all subject to this principle. There are difficult situations relating to aban-
donment that arise when medical personnel have started to provide emergency care
such as CPR. For example, once emergency medical technicians (EMTs) have started to
give treatment, they may not stop until someone else of equal or greater training takes
over for them or the patient expires. In fact, all persons who administer CPR are taught
to continue to provide this procedure until someone else of equal or greater training
relieves them or they cannot perform CPR any longer.
Hospitals are also liable for abandonment, especially in emergency situations. In
some cases, an emergency patient may have to be transferred to another hospital that
can better handle his or her care, such as a hospital that has a burn unit. However, an
emergency patient must be stabilized, often with intravenous medications, before being
transferred to another facility.
The Noncompliant or Incompetent Patient
A noncompliant patient is one who fails, or refuses, to cooperate with the recommenda-
tions of a health care professional. This person may refuse to take prescribed medica-
tions or to carry out a portion of their medical plan that is under their control.
An incompetent patient is one who is determined to be unable to provide for his
or her own needs and protection. This status must be provided by a court of law.
A patient who is noncompliant and also incompetent presents a special concern for
physicians and hospitals. Hospitalized patients who are noncompliant may discharge
themselves against medical advice (AMA), but the incompetent patient poses a unique
problem because he or she may not be able to understand the need for treatment and
may even pose a threat to another person. In this case, a physician will submit an
emergency application to a judge, who can then order an emergency hospital admis-
sion for the patient. Most states require that within 72 hours of the emergency hospital
admission a formal (due process) hearing be held. At this hearing, the patient’s medical
condition is evaluated along with the loss of any of his or her rights. A decision may
be made to either allow the patient to return home or to continue to be hospitalized.
Additional hearings are held as long as the incompetent patient is hospitalized.
Med Tip
Note that abbreviations used for the American Medical Association (AMA) and against
medical advice (AMA) are the same. Be careful not to confuse the two.
Duty to Treat Patients with HIV/AIDS
Acquired immunodeficiency syndrome (AIDS) is a disease resulting from exposure
to the human immunodeficiency virus (HIV), which causes the immune system to
break down and greatly reduces the body’s ability to resist infections and cancers. Test-
ing for HIV is useful because medications are available that can slow or even stop the
advancement of the disease. Because there is a strong stigma attached to this disease,
it is important to respect the confidentiality of anyone having an HIV or AIDS test.
Patients must give their informed consent for the test.
Med Tip
Note that testing positive for HIV does not necessarily mean that a person has, or will
develop, AIDS. Positive test results, if leaked to an employer, can lead to loss of job, on-the-
job harassment, or other serious consequences, even though such actions may be illegal.
100 PART 2 The Health Care Environment
It is unethical to refuse to treat, work with, or provide housing for a person who is
HIV or AIDS-infected. In addition, the Americans with Disabilities Act (ADA), a federal
law, protects HIV and AIDS patients from discrimination.
Physicians have faced the dilemma of honoring the confidentiality of their patients
and then risking being sued for failure to warn or protect third parties who may have
been exposed to HIV/AIDS through the activity of the patient. Honoring the patient’s
confidentiality is of particular concern when the patient is a child. The child may be
shunned by friends or others who are afraid of being exposed to the virus. In Doe v.
Borough of Barrington, the court cited the plaintiffs’ brief for numerous examples of
hysteria caused as a result of AIDS. These included a Florida family with hemophiliac
children who tested positive for HIV/AIDS, driven out of town after their house was
firebombed; a teacher with HIV/AIDS who was removed from teaching duties; and
children with HIV/AIDS who were denied schooling in Colorado (Doe v. Borough of
Barrington, 729 F. Supp. 376, N.J. 1990). The physician, by law, must make a full report to
the state about any patient who is HIV- or AIDS-positive, despite the potentially serious
consequences to the patient by reporting the case.
Med Tip
As with all legal/ethical issues, when in doubt about a notification obligation, it is wise to
check the laws in your state regarding the requirement and/or consult an attorney. The
Health Insurance Portability and Accountability Act of 1996 (HIPPA) must be considered.
Many states require only the information about a new case of AIDS and not the name of
the infected person.
Med Tip
Patients with AIDS, or who are HIV-positive, need to be treated with the same compassion
and care that would be given to any patient with a life-threatening illness.
Ethical Considerations When Treating HIV/AIDS Patients
A physician who knows that the patient may endanger the health of others has certain
ethical obligations, which include the following:
1. Persuading the patient to inform his or her partner(s)
2. Notifying authorities if there is a suspicion that the patient will not inform others
3. As a last resort, notifying the patient’s partner(s)
Exposure of Health Care Workers to a Patient’s Blood
Unfortunately, needle-stick injuries in health care settings are common even when phy-
sicians and health care workers take special precautions, such as using gloves. After
exposure to an HIV-positive patient’s blood, a physician or health care worker has
a 0.3 percent risk of contracting HIV, according to Centers for Disease Control and
Prevention estimates. In one study of medical school residents, it was found that almost
70 percent reported they had received a needle-stick injury during their medical train-
ing. Understandably, health care workers who have received needle-stick injuries wish
to know if the patient’s blood contained the HIV or AIDS virus.
If the patient refuses to be tested for HIV or AIDS, can the physician order blood
work to test for the virus without the patient’s consent? This presents both legal and
ethical concerns. HIV testing without the patient’s consent is illegal. However, some
states have allowed HIV testing without the patient’s consent when a serious situation
CHAPTER 5 The Physician–Patient Relationship 101
warrants the testing. From an ethical standpoint, HIV testing in spite of the patient’s
objection violates the patient’s autonomy and privacy.
Restrictions on HIV-Infected Health Care Workers
Public health concerns about HIV-infected health care employees has always been an
issue. Several ethical questions have been presented:
• Should health care workers, especially those who perform invasive procedures
such as drawing blood specimens, be tested for HIV?
• Should HIV-infected health care workers inform their patients that they are posi-
tive for the virus?
• Should the practice of HIV-infected workers be restricted?
As patients/consumers, it is relatively easy for us to answer yes to these three ques-
tions. For example, physicians have an ethical obligation that requires that they do no
harm to their patients. Further, physicians are obligated to disclose information to their
patients that a reasonable person would require in order to make an informed decision
about their own testing for the virus. Most patients would certainly want to know if
their physician or health care worker is infected with HIV. A Newsweek poll found that
94 percent of their readers responding to the poll agreed that all physicians and dentists
should be required to tell their patients if they are HIV-infected.
The American Medical Association recommends that HIV-positive health care
workers should not perform invasive procedures that pose a risk to their patients and
that physicians should always “err on the side of protecting patients.” The American
Academy of Orthopedic Surgeons recommends that HIV-positive surgeons not perform
procedures that involve the placement of internal devices, such as hip replacements,
wires, or even blind probing of tissue. Probably the strongest statements come from the
Federation of State Medical Boards, which states that it would be professional miscon-
duct for health care workers to perform invasive procedures if they do not know their
HIV status. Furthermore, the Federation recommends that all state boards require that
the names of HIV-infected health care workers be reported to them.
There are strong arguments for ignoring confidentiality issues and reporting HIV-
positive workers if their actions put patients’ health at risk. For example, surgeons,
gynecologists, dentists, phlebotomists, surgical nurses, and emergency medical tech-
nicians all take part in invasive procedures in which HIV could be transmitted. In
addition, removing the HIV-positive health care worker from close patient contact
could ultimately provide protection from patients’ infections and diseases such as
tuberculosis.
There are valid arguments against requiring mandatory testing and restricting the
activities of HIV-positive health care workers. For example, health care workers have a
right to freedom from discrimination and to privacy. There are statistics that show that
the risk of transmitting HIV to another person is very low. In addition, the cost of test-
ing all health care workers for HIV is prohibitive. The CDC has estimated that it would
cost more than $250 million for testing alone. This money would have to be diverted
from research and other programs. The CDC guidelines also declare that health care
workers have no ethical duty to disclose their HIV status if they present no significant
risk to their patients.
On-the-Job Protection for the Health Care Worker
There is a relatively low risk of infection for persons working in the fields of medical
transcription, secretarial, or office management in which there is little patient contact.
There is a greater risk of infection for health care professionals, such as a physician,
nurse, or medical assistant, as they have direct patient contact. The bottom line for all
health care organizations is that there should be a clearly stated policy on how to handle
all needle-stick situations (Figure 5.2) and patients’ bodily fluids.
102 PART 2 The Health Care Environment
Duty to Respect Confidentiality
Medical personnel should use a low voice when speaking to patients over the telephone
or speaking about patients to other staff members within hearing distance of any patients
in the waiting room. Ideally, a glass enclosure should be present at the front desk in all
waiting rooms to separate the receptionist from the patients and provide an additional
aid for patient confidentiality. The sign-in sheet or patient register should be designed
so those patients who are signing in or registering cannot view other patients’ names.
Duty to Tell the Truth
There has always been the dilemma in medicine about whether to tell dying patients the
truth about their prognosis (prediction for the course of their disease). On the one hand,
the truth can be a means for patients to have a sense of control and even empowerment
Duty to Properly Identify Patients
Many medical errors occur because the patient was not properly identified. It is nec-
essary to identify the patient both by stating his or her name and date of birth and
examining any other identification such as a medical wristband. It’s always wise to
ask patients to identify themselves by name and date of birth. Patients who are hard of
hearing, suffering from Alzheimer’s disease, non-English-speaking, or elderly may not
understand when you call them by name. There have been cases of incorrect patients
in the emergency department (ED) waiting area going in for treatment because they
didn’t properly hear the name that was called. It’s always wise to ask to examine some
identification, such as a driver’s license or medical wristband. Some medical offices take
the patient’s photo for their records.
Med Tip
Medical offices, clinics, and hospitals should have special absorbent cleaning material
available in case of a blood spill. Directions on what to do when a blood spill or other
accident occurs should be placed where they are visible by the entire staff.
Med Tip
Remember, if an error is made, such as not properly identifying the correct patient, admit
it immediately. Then seek to correct the situation. You may save a life.
FIGURE 5.2 Needle-Stick Protection
CHAPTER 5 The Physician–Patient Relationship 103
over their remaining time. On the other hand, the truth can act as a traumatic and
demoralizing event that may cause the patient to lose the will to live.
There has been a major change in physicians’ attitudes concerning truth telling
during the past several decades. Originally, many physicians believed in a paternalistic,
or protective, approach in which they avoided upsetting their terminally ill patients by
telling them the truth about their condition. In a research study conducted in 1961, Don-
ald Oken reported that 88 percent of U.S. physicians surveyed said it was their policy
not to tell their patients if they had a terminal malignancy. The physicians believed it
would be too upsetting to the patient. In a follow-up study 20 years later, these findings
were completely reversed, with 98 percent of the physicians surveyed following a policy
of telling the truth to patients. This position of truth telling has continued to the present
day. The openness for cancer patients came about, in part, because of the necessity to
seek consent for chemotherapy and radiation therapy.
Is this change in honesty for the benefit of the patient? Should physicians inform
their Alzheimer’s patients if their families want the information withheld? Should
elderly patients be lied to when they have to move into a nursing home? Should fam-
ily members be misled over the phone when called to come into a hospital after a family
member has expired? These difficult questions have caused many health care profes-
sionals to reexamine the truth-telling issue.
For example, medical ethicist Joseph Fletcher stated that maintaining the lie of a
diagnosis becomes very difficult for everybody on the health care team. He believed in
focusing on the consequences of an action while protecting the patient. Furthermore,
according to Fletcher, medicine had become too complex to keep secrets from patients.
He stated that in the long run it is better for the patient if the truth is told.
Med Tip
The physician is the person responsible for discussion of the diagnosis with the patient.
There are various interpretations of what constitutes lying. However, most people believe
that a lie is a falsehood told in those circumstances in which the other person has a rea-
sonable expectation of the truth.
False results of research studies also have had a negative impact upon patients. For
example, a Canadian physician working with researchers at a major U.S. medical school
reported fictitious results about a mastectomy study. The researchers falsely claimed,
and advised the medical community, that the “less radical” surgical procedure (some-
thing other than a mastectomy) was an effective treatment for cancer of the breast. This
deception took place over a 15-year period until finally they retracted their false claims.
Many believe that when dealing with the issue of truth telling, one should apply
principles of justice. In other words, try to determine what a “just” action would be for
the patient. Thomas Hackett, in writing about psychological assistance for the dying
patient, cites an example of a typical victim in which there was a failure to inform:
A woman with terminal breast cancer asked her doctor why her headaches
persisted. When the doctor said it was probably nerves, she asked why she was
nervous. He returned the question. She replied, “I am nervous because all the
tests have stopped, nobody wants my blood, and I get all the pills I want. The
priest comes to see me twice a week, which he never did before, and my mother-
in-law is nicer to me even though I am meaner to her. Wouldn’t this make you
nervous?” There was a pause. Then the doctor said, “You mean you think you
are dying?” She said, “I do.” He replied, “You are.” Then she smiled and said,
“Well, I broke the sound barrier; someone finally told me the truth.”
In some circumstances, truth telling is at variance with the medical profession’s
obligation of confidentiality. For example, in the famous Tarasoff case, the court held
104 PART 2 The Health Care Environment
that a psychiatrist should have warned Tatiana Tarasoff that one of his patients was
threatening to kill her. The patient did fulfill his threat to kill Tatiana Tarasoff. The
court stated that the therapist was under an obligation to take reasonable steps, such
as breaching confidentiality, to protect all third parties from the ill patient (Tarasoff v.
Regents of the University of California, 17 Cal. 3d 342, 1976). However, in a later case, the
same California court that tried the Tarasoff case stated that the therapist did not have a
duty to warn a third party of a threat, because the patient had not made threats against a
particular person. While these two cases seem to be at odds with each other, the current
thinking is that this later verdict is more reasonable. It is difficult, if not impossible, for a
psychiatrist to determine which threats a patient makes will result in murder. In reality,
however, many mental health physicians are maintaining a conservative approach by
hospitalizing patients who show violent tendencies.
The American Hospital Association’s Committee on Biomedical Ethics states:
Also subject to state law, confidentiality may be overridden when the life or
safety of the patient is endangered such as when knowledgeable intervention
can prevent threatened suicide or self-injury. In addition, the moral obligation
to prevent substantial and foreseeable harm to an innocent third party usually
is greater than the moral obligation to confidentiality.
Patient’s Rights
The patient has the right to approve or give consent—permission—for all treatment. In
giving consent for treatment, patients reasonably expect that their physician will use
the appropriate standard of care in providing care and treatment—this means that the
physician will use the same skill that other physicians use in treating patients with the
same ailments in the same geographic locality. (Standard of care is discussed in more
detail in Chapter 3.)
The patient’s right to privacy prohibits the presence of unauthorized persons dur-
ing physical examinations or treatments. This right has long been established. In a
precedent-setting 1881 case, the plaintiff, a poor woman named Mrs. Roberts, sued Dr.
DeMay for bringing in a third party, by the name of Scattergood, to assist him while
she was in labor. Mrs. Roberts claimed that Scattergood “indecently, wrongfully, and
unlawfully” laid hands on her and assaulted her. Even though Mrs. Roberts thought
Scattergood was a physician, which he was not, he was present without her permission.
The court found in the plaintiff’s favor and awarded her damages for the “shame and
mortification” she suffered (DeMay v. Roberts, 9 N.W. 146, Mich. 1881). While this is a
very old case, nevertheless, the message is appropriate for today. Privacy is an impor-
tant right for all patients.
Med Tip
Reasonable care under the law is the degree of care that a prudent person would exercise
(use) in a given or similar circumstance.
Additionally, patients have the right to be informed of the advantage and potential
risks of treatment—including the risk of not having the treatment. They also have the
right to refuse treatment. Some members of religious groups, such as Jehovah’s Wit-
nesses and Christian Scientists, do not wish to receive blood transfusions or other types
of medical treatment. Physicians may not treat them against their wishes. However, in
the case of a minor child, the court may appoint a guardian who can give consent for
the child’s procedure.
CHAPTER 5 The Physician–Patient Relationship 105
Med Tip
Know that, for some diseases, there have been false positives or false negatives in labora-
tory reports. The patient has a right to ask for a second opinion from another doctor or
laboratory.
Confidentiality
Patients expect that the physician and staff will keep all information and records
about their treatment confidential. In fact, the Medical Patients Rights Act provides
that all patients have the right to have their personal privacy respected and their
medical records handled with confidentiality. No information, test results, patient
histories, or even the fact that the patient is a patient, can be transmitted to another
person without the patient’s consent. A breach of confidentiality is both unethical and
illegal. See Chapter 9 for a detailed discussion of confidentiality when using electronic
transmission of patients’ medical information as mandated by HIPAA.
Med Tip
Remember that no patient information can be given over the telephone without that
person’s permission.
Privileged communication refers to confidential information that has been told to a
physician (or attorney) by the patient. The physician–patient relationship is considered
to be a protected relationship and, as such, keeps the holder of this information from
being forced to disclose it on a witness stand.
Patients are generally assumed to have the following rights:
• To obtain information concerning their diagnosis, treatment, risks, and alternatives
to treatment
• To receive information about pain and pain relief
• To receive a comparable level of care as other patients
• To take part in decisions concerning their care
• To refuse treatment and to be informed of the medical risks of refusal
• To get a second opinion
• To receive a clear explanation of their care and what they will need when they
leave the hospital
• To compose an advance directive
The Patient Care Partnership: Understanding
Expectations, Rights, and Responsibilities
The American Hospital Association created “The Patient Care Partnership” in 2008 to
help patients better understand what they have a right to expect during their hospital
stay. The criteria include:
• High-quality hospital care: provide the care you need with skill, compassion, and
respect.
• A clean and safe environment: the use of policies and procedures to avoid mistakes
in your care.
106 PART 2 The Health Care Environment
• Involvement in your care: discussing your treatment plan; getting information
about past illnesses, surgeries, hospital stays, and allergies; understanding your
health care goals and values; and understanding who should make decisions when
you cannot.
• Protection of your privacy: respect for the confidentiality of the sensitive informa-
tion about your health and health care.
• Preparing you and your family for help when leaving the hospital: help with iden-
tifying sources of follow-up care.
• Help with your billing and filing insurance claims.
Source: American Hospital Association
Advance Directives
An advance directive is a written statement in which a person states the type and amount
of care he or she wishes to receive during a terminal illness and as death approaches.
Advance directives include living wills, durable powers of attorney, and organ donation
directives. These self-determination documents provide protection for both the patient
and the physician. Patients obtain assurance that their health care wishes will be fol-
lowed at the point in time when they are unable to express their intent, and physicians
have an assurance that they are acting within the guidelines for care set by their patients.
In some cases an advance directive may name another person as proxy to make
decisions for the patient when the patient can no longer do so. All states have enacted
legislation empowering a patient to appoint a health care proxy.
Table 5.2 contains a brief summary of advance directives.
The Patient Self-Determination Act (PSDA)
The Patient Self-Determination Act (PSDA), enacted by Congress in 1991, requires
health care institutions, including hospitals, nursing homes, and others, to provide
information to adult patients about advance directives that they may create. (The law
requiring that advance directive information be provided to patients applies to institu-
tions but not to individual physicians.) Advance directives may be written well before
the person becomes ill or hospitalized. After a patient is admitted to a health care insti-
tution, advance directives should be placed in the patient’s file.
Living Will
A living will allows patients to set forth their intentions in advance as to their
treatment and care. This document contains the patient’s desires in the case of a
catastrophic situation in which he or she may be incompetent or unable to voice
Type Description
Living will A legal document that a person drafts before becoming incompetent or unable to make
health care decisions.
Durable power of attorney for health care A legal document that empowers another person (proxy) to make health care decisions
for an incompetent patient. It goes into effect after the person becomes incompetent and
only pertains to health care decisions.
Uniform Anatomical Gift Act All states have some form of this law. It allows persons 18 years or older and of sound
mind to make a gift of any part of their body for purposes of medical research or
transplantation.
Do not resuscitate (DNR) order This is an order placed into a person’s medical chart or medical record. It indicates that
the person does not wish to be resuscitated if breathing or heartbeat stops.
Table 5.2 Advance Directives
CHAPTER 5 The Physician–Patient Relationship 107
wishes concerning medical treatment. A patient may request that life-sustaining
treatments and artificial nutritional support, such as tube feedings, either be used
or not be used to prolong life. The patient may also request that no extraordinary
medical treatment, such as being placed on a respirator (ventilator), be given. In
this case, the physician puts a do not resuscitate (DNR) order in the patient’s
medical chart in either the hospital or nursing home. This means that CPR cannot
be used if the person’s heart and breathing stop. This living will document gives
patients the legal right to direct the type of care they wish to receive when death
is imminent.
Some state statutes specifically state what conditions need to be present in
order for a living will to go into effect. For example, Ohio follows the Modified
Rights of the Terminally Ill Act, which states that the person must be terminally
ill and/or in a state of permanent unconsciousness. The patient must be in a
state that is irreversible, untreatable, and incurable with the prospect of immi-
nent death. This type of regulation protects patients from having their living will
implemented when, for example, they are briefly unconscious following surgery
or a mild stroke.
Ideally, this process is discussed in the physician’s office with patients when they
are capable of making these decisions. Other family members or significant others can
also be part of the discussion and decision process. The living will document must be
signed by the patient and witnessed by another person. One copy should be kept in the
patient’s record. Many patients ask their attorneys to also retain a copy. See Figure 5.3
for a sample of a living will document.
Declaration:
This declaration is made this _________________ day of _________________ (month, year)
I, ________________________________________________________________________________________being of sound mind,
willfully and voluntarily make known my desires that my moment of death [shall not be artificially] postponed.
If at any time I should have an incurable and irreversible injury, disease, or illness judged to be a terminal condition by
my attending physician who has personally examined me and has determined that my death is imminent except for
death-delaying procedures, I direct that such procedures that would only prolong the dying process be withheld or withdrawn,
and that I be permitted to die naturally with only the administration of medication, sustenance, or the performance of any
medical procedure deemed necessary by my attending physician to provide me with comfort care.
In the absence of my ability to give directions regarding the use of such death-delaying procedures, it is my intention that this
declaration shall be honored by my family and physician as the final expression of my legal rights to refuse medical or surgical
treatment and accept the consequences from such refusal.
Signed ________________________________________________________________
Date ___________________________________________
City, County, and State of Residence ___________________________________________________
The declarant is known to me personally and I believe him or her to be of sound mind. I saw the declarant sign the declaration
in my presence, or the declarant acknowledged in my presence that he or she had signed the declaration, and I signed the
declaration as a witness in the presence of the declarant. I did not sign the declarant’s signature above for or at the direction
of the declarant. At the date of this instrument, I am not entitled to any portion of the estate of the declarant according to the
laws of intestate succession or to the best of my knowledge and belief, under any will of declarant or other instrument taking
effect at declarant’s death or directly financially responsible for declarant’s medical care.
Witness __________________________________________ Date __________________________________________
Witness __________________________________________ Date __________________________________________
FIGURE 5.3 Sample Living Will
108 PART 2 The Health Care Environment
Durable Power of Attorney
The durable power of attorney, when signed by the patient, allows an agent (also
called a proxy) or representative designated by the patient to act on behalf of the
patient. If the durable power of attorney is for health care only, then the agent may
only make health care–related decisions on behalf of the patient. (A broader power of
attorney may permit the agent to make financial and other types of decisions for the
patient.)
Because the power of attorney is “durable,” the agent’s authority continues even
if the patient is physically or mentally incapacitated. This document is in effect until
canceled by the patient. A copy of the durable power of attorney should also be kept
with the patient record. Both a living will and a durable power of attorney for health
care are recommended for all people. See Figure 5.4 for a sample of a durable power of
attorney for health care document.
Uniform Anatomical Gift Act
The Uniform Anatomical Gift Act enacted by Congress allows persons 18 years or
older and of sound mind to make a gift of any or all body parts for purposes of organ
transplantation or medical research. The statute includes two specific safeguards. First,
a physician who is not involved in the transplant must determine the time of death.
Second, no money is allowed to change hands for organ transplantation.
The donor carries a card that has been signed in the presence of two witnesses. In
some states, the back of the driver’s license has space to indicate the desire to be an
organ donor, with space for a signature.
If a person has not indicated a desire to be a donor, the family may consent on the
patient’s behalf. Generally, if a member of the family opposes the donation of organs,
then the physician and hospital do not insist on it, even if the patient signed for the
donation to take place. See Figure 11.3 for a sample donor card.
Frequently Asked Questions about Advance
Directives
Questions that are frequently asked about advance directives include the following:
• To whom should the advance directives be given? Copies of the advance directives
should be given to the personal physician, close relatives, and a close friend. In
addition (as noted earlier), a copy should be placed in the medical chart if the
patient is hospitalized or in a nursing home.
• Where should advance directives be stored? They should be kept with the patient’s
personal papers in the home or nursing home setting. It is not recommended
that they be stored in a safety deposit box, as they will not be accessible in an
emergency.
• How can the advance directive be changed or amended? Any revisions can be made by
drawing through the outdated statement in the original document. After a revision
is made, it should be dated and signed. An amended copy should be given to the
personal physician, family member, and friend.
• Can the advance directive be revoked? People can revoke their documents by destroy-
ing them and asking anyone holding a copy to do the same. Ideally, the request to
destroy the advance directive should be sent in writing to all those who hold a copy.
• What does the law say about advance directives? As described earlier, a federal law, the
Patient Self-Determination Act (PSDA), was passed in 1991. Congress has strongly
supported a person’s right to self-determination before becoming incompetent or
unable to do so.
CHAPTER 5 The Physician–Patient Relationship 109
Power of Attorney made this _______________________ day of _______________________, ______________
(month) (year)
1. I, ___________________________________________________________________________________________________________
(insert name and address of principal)
hereby appoint _______________________________________________________________________________________________
(insert name and address of agent)
as my attorney-in-fact (my “agent”) to act for me and in my name (in any way I could act in person) to make any and all
decisions for me concerning my personal care, medical treatment, hospitalization, and health care and to require, withhold,
or withdraw any type of medical treatment or procedure, even though my death may ensue. My agent shall have the same
access to my medical records that I have, including the right to disclose the contents to others. My agent shall also have
full power to make a disposition of any part or all of my body for medical purposes, authorize an autopsy, and direct the
disposition of my remains.
2. The powers granted above shall not include the following powers or shall be subject to the following rules or limitations
(here you may include any specific limitations you deem appropriate, such as your own definition of when life-sustaining
measures should be withheld; a direction to continue food and fluids or life-sustaining treatment in all events; or instructions
to refuse any specific types of treatments that are inconsistent with your religious beliefs or unacceptable to you for any
other reasons, such as blood transfusion, electroconvulsive therapy, amputation, psychosurgery, voluntary admission to a
mental institution, etc.).
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________
(The subject of life-sustaining treatment is of particular importance. For your convenience in dealing with that subject, some
general statements concerning the withholding of life-sustaining treatment are set forth below. If you agree with one of these
statements, you may initial that statement, but do not initial more than one):
________________ (initialed) I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or
continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider
the relief of suffering, the expense involved, and the quality as well as the possible extension of my life in making decisions
concerning life-sustaining treatment.
________________ (initialed) I want my life to be prolonged, and I want life-sustaining treatment to be provided or continued
unless I am in a coma that my attending physician believes to be irreversible, in accordance with reasonable medical stand-
ards at the time of reference. If and when I have suffered irreversible coma, I want life-sustaining treatment to be withheld or
discontinued.
________________ (initialed) I want my life to be prolonged to the greatest extent possible without regard to my condition, the
chances I have for recovery, or the cost of the procedures.
3. This power of attorney shall become effective on _____________________ (insert a future date or event in your lifetime, such
as a court determination of your disability, when you want this power to first take effect).
4. This power of attorney shall terminate on _____________________ (insert a future date or event, such as a court determina-
tion of your disability, when you want this power to terminate prior to your death).
5. If any agent named by me shall die, become incompetent, resign, refuse to accept the office of agent, or be unavailable, I
name the following (each to act alone and successively, in the order named) as successors to such agent:
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________.
6. I am fully informed as to all the contents of this form and understand the full import of this grant of powers to my agent.
Signed _____________________________ (principal)
The principal has had an opportunity to read the above form and has signed the form or acknowledged his or her signature
or mark on the form in my presence
______________________ Residing at: ______________________ (witness)
FIGURE 5.4 Sample Power of Attorney
110 PART 2 The Health Care Environment
Classification Definition
Minor A person under the age of 18 (termed infant under the law). The signature of a
parent or legal guardian is needed for consent to perform a medical treatment
in nonemergency situations.
Mature minor A person judged to be mature enough to understand the physician’s instruc-
tions. Such a minor may seek medical care for treatment of drug or alcohol
abuse, contraception, sexually transmitted diseases, and pregnancy.
Emancipated minor A person from age 15 to under the age of 18 who is either married, in the mili-
tary, or self-supporting and no longer lives under the care of a parent. Parental
consent for medical care is not required. Proof of emancipation (for example,
marriage certificate) should be included in the medical record.
Table 5.3 Classification of Minors’ Competencies
Rights of Minors
A minor is a person who has not reached the age of maturity, which in most states is
18. In most states, minors are unable to give consent for treatment except in special
cases involving pregnancy, request for birth control information, abortion, testing
and treatment for sexually transmitted diseases, problems with substance abuse, and
a need for psychiatric care. The courts have held that the consent of a minor to medi-
cal or surgical treatment is not sufficient. The physician must secure the consent of
the parents or someone standing in for the parents (in loco parentis) or run the risk
of liability. There are exceptions to the requirement of parental consent, as shown in
Table 5.3.
In some cases, the state must take over the care for minors who cannot care for
themselves. The principle of parens patriae authority occurs when the state takes
responsibility from the parents for the care and custody of minors under the age of 18.
This principle may also occur when persons are mentally incompetent to take care of
themselves. If the child is removed from his or her parents, then two rights must be
protected through due process: the rights of the child and the rights of the parents. It is
not a simple matter for the state to remove a child from the custody of the parents. The
state must prove that the parents are neglecting the child or are not capable of caring
for the child. Then a hearing must take place in juvenile court.
Mature minors and emancipated minors are considered competent and can provide
consent for other types of treatment as well. The varying degrees of minors’ competency
are described in Table 5.3.
Patient’s Responsibilities
In addition to the patient’s rights, the patient also has certain obligations. Patients are
expected to follow their physician’s instructions. They must make follow-up appoint-
ments to monitor their treatment and medication use if requested by their physician.
Patients must be absolutely honest with the physician about such issues as past medical
history; family medical history; and tobacco, drug, and alcohol use. Finally, patients
and parents of minor children are expected to pay the physician for medical services
(Figure 5.5). Table 5.4 lists other patient responsibilities.
Med Tip
It is recommended that all persons place in writing their wishes about what type of treat-
ment they should receive if they become incompetent. The advance directive should be
specific about treatments such as CPR, tube feedings, and the use of a ventilator.
CHAPTER 5 The Physician–Patient Relationship 111
Consent
Consent is the voluntary agreement that a patient gives permitting a medically trained
person to touch, examine, and perform a treatment. The two types of consent, informed
consent and implied consent, are discussed in the following sections.
The Doctrine of Informed Consent
Informed (or expressed) consent means that the patient agrees to the proposed course
of treatment after having been told about the possible consequences of having or not
having certain procedures and treatments (Figure 5.6). The patient’s signature on the
consent form indicates that the patient understands the limits or risks involved in the
pending treatment or surgery as explained by the physician. The goal of informed con-
sent is to protect patients’ rights to decide for themselves about their own health care
treatment. In addition, informed consent is meant to disclose information to the patient
so that he or she can make a reasoned decision.
The physician, who is solely responsible for providing information to the patient,
must carefully explain that in some cases the treatment may even make the patient’s
condition worse. The doctrine of informed consent requires the physician to explain the
following in understandable language:
• The patient’s diagnosis, if known
• The nature and purpose of the proposed treatment or procedure
• The advantages and risks of treatment
FIGURE 5.5 A Parent or
Guardian Is Responsible for a
Minor’s Medical Bills
Patient responsibilities include:
• To provide accurate and complete information
• To follow the treatment plans as recommended
• To report unexpected changes in your condition
• To inform your physician and hospital staff when you have questions
• To inform your physician or nurse when you are having pain
• To be considerate of other patients
• To respect property of others and of the hospital
• To know your rights and responsibilities
• To request your visitors to follow the rules and regulations relating to patient care or conduct
Table 5.4 Patient Responsibilities
112 PART 2 The Health Care Environment
• The alternative treatments available to the patient, regardless of their cost and
whether they will likely be covered by the patient’s insurance
• Potential outcomes of the treatment
• What might occur, both risks and benefits, if treatment is refused
In addition, the physician must be honest with the patient and explain the diag-
nosis, the purpose of the proposed treatment, and the probability that the treatment
will be successful. The purpose of this explanation is that the patient can then make a
knowledgeable decision about whether to go ahead with the treatment or procedure.
In an emergency situation in which the patient cannot understand the explanation or
sign a consent form, the physician providing the care is protected by law.
Med Tip
Patients who are deaf or hearing impaired must be given their instructions in writing or
through an interpreter. Every effort should be made to make sure the patient understands
the same information that would be given to a hearing patient.
FIGURE 5.6 Patient Signs a
Consent Form
© Fotolia
According to recent studies, some physicians have withheld options for treatment
from their patients. A University of Chicago research study found that 29 percent of the
1,144 surveyed physicians would have problems referring a patient to another doctor
for some legal procedures. In some cases, such as for contraceptives or end-of-life issues
such as withholding chemotherapy, they had ethical problems making the referral. The
advice to patients is to be aware that they may not get all the information about treat-
ments they are legally due.
In a case in Alaska, the court determined that the physician did not fulfill his duty
to disclose the risks of breast-reduction surgery when he failed to warn the patient about
the risk of scarring. In answer to the patient’s questions, the physician said that she
shouldn’t worry and she would be happy with the results. The patient wasn’t happy,
and she sued the physician and won (Korman v. Mallin, 858 P.2d 1145, Alaska 1993).
Is it difficult to know if or when the patient is fully informed? There are two stan-
dards to use to determine if the patient understands what he or she is being told. The
first standard is based upon what the physician tells the patient. Many courts will use
a “reasonable physician standard,” meaning that the physician must tell the patient
what a “reasonable physician in the same specialty” would tell him or her under the
same circumstances. This allows for a type of mass-produced consent form for many
treatments and surgical procedures. However, in addition to having a patient sign this
CHAPTER 5 The Physician–Patient Relationship 113
mass-produced consent form, the physician must also explain the procedure, risks, and
alternatives. The second standard is “the reasonable patient standard,” which means
that the patient must receive the information that other patients receive but, in addi-
tion, must be provided the opportunity to communicate questions to the physician.
Health care professionals such as nurses and medical assistants should not replace the
physician in obtaining a signed informed consent form. However, they are in an ideal
situation in either the office or hospital to alert the physician when they believe that the
patient is confused about the procedure.
It is very difficult to fully inform a patient about all the things that can go wrong
with a treatment. However, the physician must make a reasonable attempt to do so in
order for the patient to make an informed decision about treatment.
The Canterbury decision is a classic example of two crucial components of informed
consent: patients granting consent because they have the right to control what is done to
their bodies and insisting on information so they can make an intelligent decision. For
patients to be able to consent in an intelligent manner, they must be given information
by the physician that a “reasonable person” in the patient’s situation would wish to
receive. As such, the amount of information is not based on what the physician believes
is relevant but on what the patient believes he or she needs to hear. The “reasonable
person standard” was used in a 1959 case, Canterbury v. Spence. Nineteen-year-old Jerry
Canterbury, who suffered from back pain, underwent a surgical procedure to treat a sus-
pected ruptured vertebral disk. On the day following surgery, he fell off the hospital bed
while he was trying to urinate and subsequently became paralyzed from the waist down.
Emergency surgery reversed some of his paralysis, but he continued to have urologi-
cal problems. Canterbury sued both the physician (Spence) and the hospital, claiming
that he was not fully warned about the risk of falling out of bed and of paralysis. The
physician based his defense on a therapeutic privilege claim that he did not think the
disclosure of the risk of falling out of bed was necessary. The judge in the district court
ordered a directed verdict and told the jury that they must find in favor of the hospital
and physician. Upon appeal, a higher court sent the case back to the lower court so that a
jury could hear the evidence and make a decision. The court was not clear on whether the
fall or the surgery had caused the patient’s paralysis. The court also declared that a phy-
sician cannot use the therapeutic privilege to justify withholding information the patient
requires to make an informed decision. In an unusual decision, the jury also found in
favor of the hospital and physician (Canterbury v. Spence, 464 F.2d 772, D.C. 1972).
Med Tip
In many cases, patients will be more comfortable discussing their fears with a trusted
caregiver rather than with their physician. These patient fears must then be conveyed to
the physician exactly as they were expressed, and documented on the patient chart, even
if a consent form has been signed.
Med Tip
Except in emergency situations, the process of obtaining consent cannot be delegated
by the physician to someone else. If the emergency involves risk to the patient’s life or the
patient is unable to communicate, consent may be implied under the rationale that the
patient would have consented to emergency treatment.
Except in cases of emergency, all patients must sign a consent form before undergo-
ing a surgical procedure. This signed form indicates that the patient has been instructed
114 PART 2 The Health Care Environment
concerning the risks associated with the procedure. If, after the physician has carefully
explained the treatment, the patient acknowledges understanding the explanation and
risks and signs the consent form, then, generally, there is some protection from lawsuits.
However, patients have sued and won cases in which they were presented the risks of
a procedure and signed the form, and then the treatment failed.
A patient’s informed consent is limited to those procedures to which the patient has
consented. For example, in the case of Mohr v. Williams, a woman consented to have an
operation on her diseased right ear. After she was unconscious under the anesthetic,
the ear surgeon determined that the right ear was not diseased enough to warrant an
operation, but the left ear was seriously diseased. He proceeded to operate on the left
ear without reviving her to seek permission. The operation was skillfully performed
and successful. However, the plaintiff sued for battery and won. The physician appealed
that verdict, but the appellate court determined that because the surgery was unauthor-
ized, even though successful, it constituted an assault (Mohr v. Williams, 104 N.W. 12,
Minn. 1905). In another early case, a physician was sued when he received consent to
repair a woman’s hernia but also removed both ovaries (Zoterell v. Repp, 153 N.W. 692,
Mich. 1915).
Procedures in which an informed consent form should be signed include the
following:
• Minor invasive surgery
• Organ donation
• Radiological therapy, such as radiation treatment for cancer, including radiological
imaging procedures requiring IV contrast
• Electroconvulsive therapy
• Experimental procedures
• Chemotherapy
• Any procedure with more than a slight risk of harm to the patient
In some circumstances—such as HIV testing, procedures involving reproduction, and
major surgical procedures—state laws require that the patient sign an informed consent
form. This signed document represents a legal statement in which the patient certifies
that the risks, benefits, and alternatives to treatment have been thoroughly explained.
The document is an indication that the informed patient enters the treatment of their own
free will and not by means of coercion. It is always important to ask the patient to sign an
“Informed Consent to Treatment” form before administering any treatment.
Med Tip
Remember that the patient grants informed consent to the physician. Simply explaining a
procedure to the patient does not constitute informed consent. The patient must under-
stand the explanation and agree to the procedure by signing a consent form.
Certain categories of patients are judged to be incapable of giving an informed
consent. These include minors (other than emancipated minors), the mentally incom-
petent, persons who do not understand English or the language of the physician trans-
mitting the information and have no interpreter present, and emergency patients who
are unconscious.
Implied Consent
A physician should obtain written consent before treatment whenever possible. How-
ever, the law may assume or “imply” a patient’s consent. Implied consent can be difficult
to interpret because it is based on another person’s interpretation. Implied consent
CHAPTER 5 The Physician–Patient Relationship 115
occurs when patients indicate by their behavior that they are accepting of the procedure.
The patient’s nonverbal communication may indicate an implied consent for treatment
or examination. Because consent means to give permission or approval for something,
when a patient is seen for a routine examination, there is implied consent that the physi-
cian will touch the person during the examination. Therefore, the touching required for
the physical examination would not be considered the crime of battery.
In a famous precedent-setting case involving implied consent, the court declared
that a woman had given consent for a vaccination when she extended her arm (O’Brien
v. Cunard S.S. Co., 28 N.E. 266, Mass. 1891). Implied consent is also assumed in medi-
cal emergencies when the patient cannot respond to give consent. In this case, the
law assumes that if the patient were able, consent would be given for the emergency
procedure. In an Iowa case, the court determined that implied consent existed when a
surgeon removed the mangled limb of a patient run over by a train because the proce-
dure was necessary to save the patient’s life (Jackovach v. A. L. Yocum, Jr., 237 N.W. 444,
Iowa 1931).
Med Tip
Both expressed and implied consent should be an informed consent. This means that
patients must know, or be informed, about what they are providing consent for, except
in the case of implied consent for a patient with a medical emergency who is unable to
receive information or respond.
Exceptions to Consent
There are exceptions to the informed consent doctrine that are unique to each state.
Some of the more general exceptions follow:
• A physician need not inform a patient about risks that are commonly known. For
example, physicians need not tell patients that they could choke swallowing a pill.
• A physician who believes the disclosure of risks may be detrimental to the patient
is not required to disclose them. For instance, if a patient has a severe heart condi-
tion that may be worsened by an announcement of risks, the physician should not
disclose the risks.
• If the patient asks the physician not to disclose the risks, then the physician is not
required to do so.
• A physician is not required to restore patients to their original state of health and,
in some cases, may be unable to do so.
• A physician may not be able to elicit a cure for every patient.
• A physician cannot guarantee the successful results of every treatment.
Refusal to Grant Consent
Adult patients who are conscious and considered to be mentally capable have a right to
refuse any medical or surgical treatment. The refusal must be honored no matter what
the patient’s reasoning: concern about the success of the procedure, lack of confidence
in the physician, religious beliefs, or even mere whim. Failure to respect the right of
refusal could result in liability for assault and battery. In Erickson v. Dilgard, the hospital
requested the court to authorize a blood transfusion over the patient’s objection. The
court held in favor of the patient who refused a blood transfusion, even though the
refusal could have resulted in the patient’s death (Erickson v. Dilgard, 252 2d 705, N.Y.S.
1962). The hospital and medical personnel have a responsibility to use reasonable care
to protect the patient from touching (assault and battery) when consent has not been
granted.
116 PART 2 The Health Care Environment
Role of the Health Care Consumer
Today’s health care consumer is better informed about medicine and treatments than
ever before due to an abundance of literature, television programming, and information
available on the World Wide Web. However, wise consumers will not self-medicate or
offer their medications to family members and friends for their use. Health care per-
sonnel must carefully question all patients/consumers about over-the-counter (OTC)
medications they may be taking. Many OTC medications, such as aspirin, can have a
negative interaction with prescribed medications. Dietary supplements such as herbs
and vitamins should also be declared by the patient. The consumer must alert the medi-
cal staff to any allergies and adverse reactions to medications.
Health care consumers must be honest with their physicians about prescriptions
they may be taking that were prescribed by other doctors. Every patient/consumer
should carry a small card listing all medication names and dosages in the event the
names are needed for a patient history or in an emergency situation. They should ask
questions about their medications and the treatments they are receiving. If they do not
understand what they are told, then they should be persistent with the physician or
health care professional until they do understand the instructions.
The patient/consumer can assist the physician in prevention of medical errors.
Before undergoing any surgical treatment, it is important that the patients, their per-
sonal physicians, and their surgeons all are clear on what will be done. Many fail-
safe approaches have been instituted by medical professionals to prevent errors. For
instance, performing surgery at the wrong site, such as the right knee instead of the left
knee, is rare. But to prevent this type of injury to the patient, the American Academy of
Orthopedic Surgery urges all its members to sign their initials directly on the site to be
operated upon before the surgery.
Med Tip
It is important to remember that many patients do not understand medical terminology.
They are often ashamed to admit that they either do not understand or cannot hear the
instructions. It is the health care professional’s duty to make sure that the patient is fully
informed.
Points to Ponder
1. Does it surprise you to find out that physicians have
the right to select the patients they wish to treat?
2. Can a physician receive a payment from a hospital for
referring patients to that particular institution? Why
or why not?
3. If a deceased relative signed a statement (Uniform
Anatomical Gift Act) requesting that any or all
body parts be used for organ transplantation or
medical research, can a family member overturn that
statement?
4. Do you believe that it is appropriate for a physician to
report the unethical conduct of a fellow physician?
5. Do you think that physicians should treat their own
family members? Why or why not?
6. Can a nurse obtain consent from a patient for a
surgical procedure if the physician is extremely busy
handling an emergency case?
7. What can you say to your patient’s employer who
calls to find out if the employee’s medical condition
has improved?
Chapter Review5
CHAPTER 5 The Physician–Patient Relationship 117
Discussion Questions
1. Explain what it means when one physician “covers”
for another.
2. Describe the three advance directives that a patient
can use. When are they appropriate?
3. Denny O’Malley is being treated by Dr. Williams after
having fallen off a ladder at work. His employer calls
to find out how Denny is doing. Can Dr. Williams
discuss Denny’s progress with his employer? Why or
why not?
Review Challenge
Short Answer Questions
1. What might happen if a physician ignores a patient’s
refusal to grant consent?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. A woman opens her mouth for the physician to
examine her throat. Is this a form of consent? If so,
what form of consent is this?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. A 4-year-old child opens his mouth for the physician
to examine his throat. In your opinion, has the child
granted consent?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. A physician makes the following statement to Sarah:
“Your blood pressure is only slightly elevated. This
blood pressure medication is guaranteed to reduce
your blood pressure a few points.” In your opinion, is
this a safe comment to make? Explain your answer.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. Why does a patient need to know the consequences of
NOT having a procedure or treatment?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. Why is a durable power of attorney called “durable”?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. You are working in a nursing home as a nurse’s aide,
but your long-term goal is to become a nurse. You
have become very skilled in performing CPR due to
an excellent educational program. As you are about
to move a patient to her bed, she stops breathing and
has no pulse. You immediately begin CPR as you
have been trained. A nurse in the room with you says
that you must stop because the woman has a DNR
order. You have been taught that once you begin CPR
you must continue until you no longer can continue.
What do you do?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
118 PART 2 The Health Care Environment
8. You are in an externship in a physician’s office in the
final two weeks of a medical assisting program. Just
as a patient is brought into the office he collapses in
front of you, stops breathing, and has no pulse. You
call for help because you are afraid that, even though
you have been trained in CPR, you have never per-
formed it on a patient. It would take several minutes
for someone else to begin CPR. Please comment.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. agent
_____ 2. minor
_____ 3. standard of care
_____ 4. implied consent
_____ 5. privileged communication
_____ 6. informed consent
_____ 7. exception to consent
_____ 8. right to be informed
_____ 9. durable power of attorney
_____ 10. abandonment
COLUMN B
a. commonly known risks
b. consent granted by inference
c. document that allows an agent to represent a patient
d. same skill that is used by other physicians
e. representative acts on patient’s behalf
f. withdrawing medical care without notice
g. person under 18 years of age
h. “A Patient’s Bill of Rights”
i. knowledgeable consent
j. confidential information
Multiple Choice
Select the one best answer to the following statements.
1. A patient rolling up a sleeve to have a blood sample
taken is an example of
a. standard of care.
b. informed consent.
c. implied consent.
d. advance directive.
e. agent.
2. A condition in which a patient understands the
risks involved by not having a surgical procedure or
treatment performed is known as
a. standard of care.
b. informed consent.
c. implied consent.
d. advance directive.
e. agent.
3. The Uniform Anatomical Gift Act is applicable for
a. persons up to the age of 18.
b. persons 18 years of age and older.
c. persons who are mentally handicapped.
d. very few people.
e. the purpose of selling organs.
4. Which of these refers to a physician using the same
skill that is used by other physicians in treating
patients with the same ailment?
a. privileged communication
b. informed consent
c. implied consent
d. standard of care
e. none of the above
5. The physician’s rights include
a. the right to decline to treat a new patient.
b. the ability to receive payment from hospitals for
referring patients.
c. the right to protect fellow physicians who are
guilty of a deception.
d. the right to publish confidential information about
a patient if it is in the physician’s best interest.
e. all of the above.
CHAPTER 5 The Physician–Patient Relationship 119
6. In what document are patients able to request the
type and amount of artificial nutritional and life-
sustaining treatments that should or should not be
used to prolong their life?
a. Uniform Anatomical Gift Act
b. Medical Patients Rights Act
c. living will
d. standard of care
e. none of the above
7. The patient’s obligations include
a. honesty about past medical history.
b. payment for medical services.
c. following treatment recommendations.
d. a and c only.
e. a, b, and c.
8. Exceptions to informed consent include
a. telling the patient about the risk involved in not
having the procedure.
b. the discussion of sensitive sexual matters.
c. not having to explain risks that are commonly
known.
d. all of the above.
e. none of the above.
9. The doctrine of informed consent
a. can be delegated by the physician to a trusted
assistant.
b. may have to be waived in the event of an emer-
gency situation.
c. does not have to be signed by every patient.
d. could result in a lawsuit for assault and battery if
not performed.
e. b and d only.
10. A newspaper reporter seeks information from a
receptionist about a prominent personality who has
been hospitalized. What information can be given to
the reporter?
a. none
b. the basic fact that the person is a patient
c. the name and phone number of the attending
physician
d. a very brief statement about the person’s medical
condition
e. there are no restrictions
Discussion Cases
1. Terry O’Rourke, a 25-year-old patient of Dr. Williams,
refuses to take her medication to control diabetes and is
not following her dietary plan to control her disease. After
repeated attempts to help this patient, Dr. Williams has
decided that she can no longer provide care for Terry. The
office staff have been advised not to schedule Terry for
any more appointments.
a. Is there an ethical and/or legal concern regarding this
situation?
____________________________________________
____________________________________________
b. Is there anything else that either Dr. Williams or her
staff should do to sever the patient relationship with
Terry?
____________________________________________
____________________________________________
c. Is this a breach of contract on the part of Dr. Williams?
Explain your answer.
____________________________________________
____________________________________________
2. Dr. Williams has been treating a popular performer who
has just committed suicide.
a. What statement can Dr. Williams or her staff give to
reporters when they call Dr. Williams’s office?
____________________________________________
____________________________________________
b. What can Dr. Williams or her staff say to the mother of
the deceased patient when she calls for information?
____________________________________________
____________________________________________
120 PART 2 The Health Care Environment
Put It Into Practice
Interview someone you know who has recently been a patient. Ask that person to tell
you what he or she believes are the patient’s responsibilities. Do these statements agree
with those in the textbook? How do they differ?
Web Hunt
Search the website of the U.S. Department of Health and Human Services (www.hhs
.gov) and examine “The Patient’s Bill of Rights in Medicare and Medicaid.” What does
the document have to say about the confidentiality of health information?
Critical Thinking Exercise
What should you do if you know that your employer owns an MRI facility along with
two other persons and your patients are being referred to this facility?
Bibliography
American Hospital Association. 2008. Patient care partnership. Chicago:
American Hospital Association.
American Hospital Association. 2010. A patient’s bill of rights. Chicago:
American Hospital Association.
American Medical Association. 2016. Code of medical ethics: Current
opinions on ethical and judicial affairs. Chicago: American Medical
Association.
Beaman, N., & L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Black, H. 2014. Black’s law dictionary (8th ed.). St. Paul, MN: West
Publishing.
CDC National AIDS Clearinghouse. 2010. Rockville, MD: CDC National
AIDS Clearinghouse.
Fletcher, J. 1966. Situation ethics: The new morality. Louisville, KY:
Westminster John Knox Press.
Flynn, E. 2000. Issues in health care ethics. Upper Saddle River, NJ:
Prentice Hall.
Hall, M., & M. Bobinski. 2014. Health care law and ethics in a nutshell.
St. Paul, MN: West Publishing.
Klitzman, R. Not telling your doctor the whole truth can be deadly.
Bottom Line Personal (October 1, 2007).
Levine, C. 2011. Taking sides. New York: McGraw-Hill.
Manier, J. 2007. Many doctors withhold options from patients, study
says. Chicago Tribune (February 8), 7.
Mappes, T., & D. DeGrazia. 2010. Biomedical ethics. New York:
McGraw-Hill.
Munson, R. 2007. Intervention and reflection: Basic issues in medical ethics.
New York: Wadsworth.
Study: Hospital lapses killing 32,000 yearly. 2003. Chicago Tribune, sec.
1 (October 8), 16.
Veatch, R. 2016. The basics of bioethics. New York: Routledge.
http://www.hhs.gov/
http://www.hhs.gov/
121
Chapter 6
Professional Liability
and Medical Malpractice
Learning Objectives
After completing this chapter, you will be able to:
6.1 Define the key terms.
6.2 Define the four Ds of negligence for the
physician.
6.3 Discuss the meaning of respondeat superior
for the physician and the employee.
6.4 Discuss the meaning of res ipsa loquitur.
6.5 Explain the term liability and what it means
for the physician and other health care
professionals.
6.6 List 10 ways to prevent malpractice.
6.7 State two advantages of arbitration.
6.8 Discuss three types of damage awards.
6.9 Describe two types of malpractice insurance.
6.10 Explain the law of agency.
Key Terms
Affirmative defense
Alternative dispute resolution
(ADR)
Arbitration
Arbitrator
Assumption of risk
Borrowed servant doctrine
Cap
Claims-made insurance
Comparative negligence
Compensatory damages
Contributory negligence
Damages
Defensive medicine
Dereliction
Direct cause
Duty
Feasance
Federal Rules of Evidence
Fraud
Law of agency
Liable
Malfeasance
Malpractice
Mediation
Misfeasance
Negligence
Nominal damages
Nonfeasance
Occurrence insurance
Product liability
Proximate
Punitive damages
Res ipsa loquitur
Res judicata
Rider
Settlement
Strict liability
Tort
Tort reform
Tortfeaser
122 PART 2 The Health Care Environment
Introduction
Even when procedures or treatments are conducted with the best intentions and skill,
they don’t always turn out as expected. Unfortunately, we are living in a litigious soci-
ety, and when medical accidents happen, the patients and their families may look for
someone to blame.
Health care professionals need to be on constant alert for practices that could
result in injury to the patient. Not only is the injury a painful process, it can also be a
life-threatening one. All health care professionals must realize that they are responsible
for their actions. The physician/employer also assumes responsibility for the employees
through the doctrine of respondeat superior. While people have always been liable for
their own conduct, the courts are now finding that everyone associated with negligent
actions is liable for damages (monetary award to the plaintiff).
The topics of negligence and malpractice are briefly discussed in Chapter 2. This
chapter concentrates on professional liability and how to prevent malpractice from hap-
pening. Included in this chapter are numerous examples of court cases to illustrate the
wide variety of lawsuits and negligence cases that name physicians and hospitals as
defendants. While most of the cases reflect legal actions against physicians, all people
working in the medical profession can be sued. Examples are also provided of other
health care professionals who have been named in lawsuits, such as nurses, medical
assistants, dental assistants, laboratory technicians, nursing assistants, paramedics, phar-
macists, physical therapists, physician assistants, and respiratory therapists (Figure 6.1).
FIGURE 6.1 Members of Health Care Team
Explain Medical Information to a Patient
The Case of John F. and the HMO
John, a 34-year-old father of two children, is a member of a health
maintenance organization (HMO) in Texas. John has made several
trips to an area clinic recommended by his HMO to seek medical
attention since finding blood in his bowel movements. He has
been taking large amounts of aspirin for persistent headaches but
did not realize that this could cause internal bleeding. John was
always seen at the clinic by a physician assistant, Robert M., but
never by a physician. Robert didn’t ask John about taking any
nonprescription medications. John didn’t realize that he should
mention his over-the-counter medication (aspirin) consumption.
Robert tells John to take an antacid preparation to control the
bleeding, but does not order any tests. He tells John to return if
he is not any better. Two days later, John is rushed to the area
emergency department with a bowel hemorrhage.
1. What responsibility, if any, does Robert have for John’s
emergency condition?
2. Does the clinic have a responsibility to provide its HMO
members with the services of a physician?
3. What responsibility, as a health care consumer, does John
have for his own medical condition?
CHAPTER 6 Professional Liability and Medical Malpractice 123
Professional Negligence and Medical
Malpractice
Professional misconduct, including incorrect or negligent treatment of a patient by per-
sons responsible for that patient’s health care, such as physicians, dentists, nurses, and
other health care professionals, or a demonstration of an unreasonable lack of skill with
the result of injury, loss, or damage to the patient, is considered malpractice. Malprac-
tice is negligence or other wrongdoing committed by a professional person, such as a
medical professional. Malpractice acts consist of professional misconduct, improper
discharge of professional duties, and failure to meet professional standards of care that
result in harm to another person. A physician is held to a different but not higher stan-
dard of care than a nurse, medical assistant, physician assistant, or phlebotomist. In the
United States, physicians and most licensed professionals such as nurses and physician
assistants are held to a national standard of care. This standard is set by observing what
a competent peer in another location would do in a similar circumstance. It is important
to note that this high level of practice and “standard of care” is actually the minimum
that is considered acceptable.
Some malpractice is relatively clear and easy to determine, such as when a sur-
gical instrument left in a patient during an operation shows up on X-ray. However,
many cases are not as clear. There are cases in which the physician or other health
care professional has performed a procedure that would normally be beneficial but
does not have the expected outcome. Because each patient is unique, each may react
differently to a medical treatment. If there is a negative result, the patient and family
are naturally upset. But is this malpractice? A court of law is often asked to determine
the answer.
Negligence is a form of malpractice that occurs when a health care professional
either performs an action a reasonable professional would not have performed or fails to
perform an action a reasonable professional would have performed in a similar situation.
For example, two of the most common errors resulting from negligence in health care
facilities are medication errors and patient falls. Both of these errors are preventable by
using caution and double-checking all orders.
Med Tip
All health care workers are responsible for their actions even though the doctrine of respon-
deat superior states that an employer is also liable for injury to a patient.
Med Tip
A person who is injured sues under tort law (“a wrongful act against another person”).
Negligence is categorized as an unintentional tort. That is, the health care professional did
not intend to do the wrong thing. (A wrong done deliberately would be categorized as an
intentional tort.) The unintentional tort of negligence is the most common basis of lawsuits
against health care professionals.
Injury to a patient is not the only cause of negligence suits. In addition, charges
of negligence against a physician or other health care professional often arise because
the patient or family is not happy with the outcome of the treatment or procedure. A
jury in a negligence trial would have to determine if a reasonable professional person
would have done the same action or would have treated the patient in the same way.
124 PART 2 The Health Care Environment
Many people consider the tort (civil wrong) of negligence and the tort of mal-
practice to be the same thing. The difference is that malpractice is a broader concept
that encompasses both negligence, which is unintentional, and deliberate or intentional
wrong acts. However, not every mistake or error constitutes negligence or malpractice.
When a treatment or diagnosis does not turn out well, the physician has not necessarily
been negligent. Rather, physicians must act within the standard of care appropriate for
their profession, with attention to their special field or their particular level of medicine.
All health care providers are held to this same standard in their field of practice. Physi-
cians and health care workers who fail to act reasonably in the same circumstances are
negligent. Medical malpractice often involves more than just a poor outcome for the
patient. It may reflect an inexcusable lapse in judgment by a medical professional that
results in serious injury and even death for the patient. In fact, there is evidence that
nearly 250,000 Americans die each year not from their medical condition but from pre-
ventable medical errors (https://www.hopkinsmedicine.org/news/media/releases/
study). Medication errors are one of the leading types of medical errors. Medical mal-
practice claims may arise when a physician acts in an unacceptable manner when com-
pared with how other physicians with similar training would act. However, as already
noted, an unsuccessful or unanticipated result from a surgical procedure or medical
treatment does not, in itself, mean that malpractice has been committed.
Med Tip
Health care professionals are expected to use “reasonable skill” when providing care and
treatment to patients. Not everyone will perform an action in exactly the same way, as
each person’s skill level will vary by small degrees from the skill levels of others in the same
profession or position. However, an “unreasonable lack of skill” is unacceptable because it
can be concluded that the person did not have even the minimum required skill level or has
simply been careless in performing the skill. This lack of skill or unacceptable performance
of the skill can result in injury to the patient.
Med Tip
The medical model that said “If we train people enough, they won’t make a mistake, but
if they do make a mistake, we will punish them” doesn’t seem to work anymore. The
best way for you as a health care professional to avoid errors is to always double-check
all orders and health care decisions that physicians and other health care professionals
make. If you don’t understand the physician’s orders or if they seem improper, convey
your questions to the physician immediately, before carrying out the orders. Technology
is also helping by providing electronic prescriptions in place of handwritten ones; this has
eliminated many medication errors. Most important, never perform a procedure for which
you are not trained.
The Tort of Negligence
A tort is a breach of duty that causes injury, damage, or a wrong to a person or property,
excluding breach of contract. Chapter 2 discusses the many injuries that are covered
under tort law, including assault, battery, false imprisonment, defamation of character,
fraud, and invasion of privacy. As health care professionals, many of us have observed
serious torts occurring among friends and our own families by the negligent behavior
of other health care professionals, including doctors.
The discussion about torts is important for us to thoroughly understand because,
as health care professionals, we cannot even imagine causing injury to our patients.
https://www.hopkinsmedicine.org/news/media/releases/study
https://www.hopkinsmedicine.org/news/media/releases/study
CHAPTER 6 Professional Liability and Medical Malpractice 125
Both actions and inactions (omissions) can be considered negligence. Failure to
provide clear instructions regarding treatment or a medication’s use is an omission that
could result in a disastrous outcome for the patient. Providing incorrect information is
also considered negligence.
Med Tip
Remember that you can be sued even if you are right. Patients can be injured through no
fault of the medical personnel. The lawsuit brought by the injured patient may or may not
be successful.
• Duty—occurs when an obligation is established between the physician and the patient, or health
care provider and patient, to provide the patient a certain standard of care.
• Dereliction or breach of duty—occurs when the physician or health care provider has failed to pro-
vide a correct standard of care to the patient and, therefore, has not met the duty, resulting in injury
to the patient.
• Direct or proximate cause—exists when the patient’s injury is a direct result of the negligence of the
physician or health care provider.
• Damages—are a financial or other award granted to the patient as compensation for the injury.
Table 6.1 The Four Ds of Negligence
Professional liability malpractice claims are classified in three ways: malfeasance,
misfeasance, and nonfeasance. These terms, plus the term tortfeaser, all stem from the word
feasance, which means doing an act or performing a duty.
Malfeasance refers to performing a wrong or illegal act. For example, it is malfea-
sance for a nurse or medical assistant to prescribe a medical treatment or medication.
Only the physician can prescribe medications and treatments. Medical personnel must
be especially aware of malfeasance when they offer advice, such as “Try giving your
child aspirin to bring down the fever.” The term malfeasance is often used when a public
official has done something illegal.
Misfeasance is the improper performance of an otherwise proper or lawful act. An
example of misfeasance occurs when a poor technique is used by a nurse, medical assis-
tant, or phlebotomist to perform a venipuncture and the patient suffers nerve damage.
Nonfeasance is the failure to perform a necessary action. For instance, it would be
nonfeasance if a medical assistant or nurse is trained in cardiopulmonary resuscitation
(CPR) but does not administer this life-saving technique when a patient collapses in the
physician’s waiting room and requires CPR.
A tortfeaser is a person guilty of committing a tort.
The Four Ds of Negligence
In order to obtain a judgment for negligence against a physician (defendant), the patient
(plaintiff) must be able to show all four of what are called the “four Ds”—duty, derelic-
tion or breach of duty, direct or proximate cause, and damages or injuries. See Table 6.1
for a summary of the four Ds of negligence.
Duty
Duty is the responsibility established by the physician–patient relationship. It is the
obligation that one person has to another person—for instance, not to perform a medi-
cal procedure that is known to be harmful to a patient. The patient must prove that a
relationship had been established. When the patient has made an appointment and has
been seen by the physician, a relationship has been established. Further office visits
126 PART 2 The Health Care Environment
and treatment also establish that the physician has a duty or obligation to the patient
(Figure 6.2). There is also a duty to warn the patient of problems that could be associ-
ated with treatments or medications. A special type of duty arises, for example, when
a patient tells a psychiatric counselor he or she intends to harm another person. In this
situation, the psychiatric counselor has a duty to warn the other person.
FIGURE 6.2 Health Care Professionals Have
a Duty or Obligation to Their Patients
© BSIP SA/Alamy
Med Tip
The determination of duty in a courtroom is the responsibility of the judge, not the jury. For
example, if the parents of a child who drowned sued an off-duty nurse who stood by and
did nothing, the case would be dismissed by the judge because an off-duty nurse does
not have a legal obligation (duty) to do anything (except in the state of Vermont).
The duty of “due care” uses the reasonable person standard, which means that
everyone has a duty to act as a reasonable, prudent person of average intelligence
would under the same or similar circumstances. Those in special professions, such as
physicians, physician assistants, nurses, and medical assistants, are held to a standard
of care exercised by similar professionals in the same or a similar community or geo-
graphic area. This standard never varies for a particular professional, so a physician is
held to the same standard as another reasonable and prudent physician, a nurse is held
to the same standards as other nurses, and so on.
There is a duty to care for a hospitalized patient after the patient enters the nurs-
ing floor. A phone call from admitting or the emergency department, stating “You are
getting a new patient,” usually precedes the patient’s arrival. If all the beds are filled
on the nursing unit, the nurse may state, “We don’t have room for a new patient.” But
after the patient arrives on the nursing unit, there is an obligation, or legal duty, to
care for that patient. You should identify the patient both by stating his or her name
and by examining any other identification, such as an arm band or a driver’s license.
Patients also need to state their name if they are able to. Be cautious because patients
with Alzheimer’s, the elderly, or for whom English is a second language may just
agree with what you are saying. Use discretion with patient sign-in sheets to protect
confidentiality.
CHAPTER 6 Professional Liability and Medical Malpractice 127
Dereliction of Duty (Breach of Duty)
Dereliction, or neglect, of duty (also called breach of duty) is a physician’s failure to act
as any ordinary and prudent physician (a peer) would act in a similar circumstance. To
prove dereliction or neglect of duty, a patient would have to prove that the physician’s
performance or treatment did not comply with the acceptable standard of care. For
example, if a physician does not properly inform patients about all the risks associated
with surgical procedures, then the physician has neglected, or breached, his or her duty
to the patients. If the outcome of a procedure is one that the patient did not anticipate
or was not informed about, then this may constitute grounds for a lawsuit claiming
dereliction of duty.
Direct or Proximate Cause
Direct cause is the continuous sequence of events, unbroken by any intervening cause,
that produces an injury and without which the injury would not have occurred. Direct
or proximate cause means that the injury was proximately or closely related to the
physician’s (defendant’s) negligence. It does not necessarily mean the closest event in
time or space to the injury, and it may not be the event that set the injury in motion.
Proximate cause means that there were no intervening forces between the defendant’s
action(s) and the plaintiff’s (patient’s) injury—hence a cause-and-effect relationship.
Proximate cause of injury requires the patient to prove that the physician’s or agent’s
(such as a nurse’s) dereliction of duty was the direct cause for the injury that resulted.
An example of proximate cause would be if a medical assistant or laboratory techni-
cian, who works under the direct supervision of a doctor, performs a venipuncture on
a patient to obtain a blood sample, and subsequently the patient complains of a loss of
feeling in the arm that was used for the venipuncture. To prove proximate cause, the
plaintiff (patient) would have to prove that there was no intervening cause, such as a
tennis injury or damage from an accident, that occurred between the time the blood
was drawn and the time the nerve damage happened.
Med Tip
Proximate cause refers to the last negligent act that contributed to a patient’s injury, without
which the injury would not have resulted.
Med Tip
To have a preponderance of evidence to find in favor of the plaintiff, the jury believes that
it is at least 51 percent likely the defendant caused the injury.
PREPONDERANCE OF EVIDENCE One side of a case must demonstrate a greater
weight of evidence than the other side. The plaintiff must prove that it is more likely
than not that the defendant, in this case the physician, has caused the injury. If the
defendant demonstrates more convincing evidence than does the plaintiff, then the case
will be found for the defendant. If both sides demonstrate equally convincing evidence,
then the case will usually be found in favor of the defendant. Remember that the burden
of proof remains on the plaintiff (also defined in Chapter 2).
RES IPSA LOQUITUR The doctrine of res ipsa loquitur, meaning “the thing speaks for
itself,” applies to the law of negligence. This doctrine tells us that the breach (neglect) of
duty is so obvious that it doesn’t need further explanation, or it “speaks for itself.” For
instance, leaving a sponge in the patient during abdominal surgery, dropping a surgical
instrument onto the patient, and operating on the wrong body part are all examples of
128 PART 2 The Health Care Environment
res ipsa loquitur. None of these would have occurred without the negligence of some-
one. Res ipsa loquitur, often called res ipsa or RIL, is so obvious that expert witnesses are
usually not necessary.
Under the doctrine of res ipsa loquitur, an exception to the burden of proof rules
occurs because the burden of proof now falls to the defendant, who must prove that,
based on evidence, the patient’s injury was not caused by negligence. The judge decides
in pretrial hearings if a case can be tried on the basis of res ipsa. Three conditions must
be present:
• The injury could not have occurred without negligence.
• The defendant had total and direct control over the cause of injury, and the duty
was within the scope of the duty owed to the patient or injured party.
• The patient did not, and could not, contribute to the cause of the injury.
For example, a patient under anesthesia when the alleged injury occurred could not
have contributed to the cause of the injury. However, if, before receiving the anesthetic,
the patient neglected to inform the physician about a condition that could be adversely
affected by the procedure or anesthesia, such as a diabetic condition or eating a full
meal, then this may rule out res ipsa loquitur, because the patient may have contributed
to the cause.
In order to have a civil malpractice lawsuit, the plaintiff (patient) must show that:
• A relationship had been established between the patient and the physician.
• This relationship established a duty of the physician to the patient.
• This duty required the physician to perform at a particular standard of care.
• The duty was breached by the physician.
• The patient received an injury as a result of the physician’s breach of duty.
• The physician’s breach of duty was the proximate cause of injury to the patient.
Damages
Damages refers to compensation awarded to the plaintiff for any injuries caused by
the defendant. Patients may seek damages (recovery or compensation) for a variety of
injuries, including:
• Permanent physical disability
• Permanent mental disability
• Loss of enjoyment of life
• Personal injuries
• Past and future loss of earnings
• Medical and hospital expenses
• Pain and suffering
If the patient does not receive any injury, then there is no negligence case. For
example, if the risks involved in having a particular surgical procedure, such as the
risk of infection, were not explained to a patient and the patient did not suffer an injury
(infection, in this case), then there is no negligence case.
The court may award compensatory damages to pay for the patient’s injuries. Other
monetary awards fall into the categories of special compensatory, punitive, and nominal
damages. Some states have placed a limit, or cap, on the amount of money that can be
awarded in a medical malpractice case.
Compensatory damages are payment intended to compensate (make up) for the
actual loss of income, emotional pain and suffering, or injury suffered by the patient.
These losses are past, current, and future and include lost wages and profits. The court
CHAPTER 6 Professional Liability and Medical Malpractice 129
will consider the amount of physical disability, loss of earnings to date, and any future
loss of earnings to determine the amount of the monetary award. Special compensatory
damages refers to a monetary award to compensate the patient for losses that were not
directly caused by the negligence. For example, the patient might incur additional medi-
cal expenses for physical therapy to regain strength after being bedridden because of
the original injury. Noneconomic reasons include disfigurement, disability, and loss of
consortium (loss of ability to have normal sexual intercourse).
In some states the plaintiff’s attorney may receive as much as one-third of the
payment, plus expenses. In some states, where there is no cap, or limit, on the amount
of money that can be awarded, the plaintiff may receive millions. In some cases, these
large payments have meant that physicians’ medical malpractice insurance premiums
have increased to a point where physicians cannot afford them and, thus, have had to
leave their practices.
Punitive damages, also called exemplary damages, are monetary awards by a court
to a person who has been harmed in an especially malicious or willful way. This mon-
etary award is not always related to the actual cost of the injury or harm suffered. Its
purpose is to serve as punishment to the offender and a warning to others not to engage
in malicious behavior. Punitive damages can result in a large cash award. The punitive
awards have been growing substantially over the past decade and may reach into the
millions. For example, a person who practices medicine without a license may receive
punitive damages in order to serve as a warning to that person and others that this is
an especially harmful practice.
Nominal damages refers to a slight or token payment to a patient to demonstrate
that, while there may not have been any physical harm done, the patient’s legal rights
were violated. The award may be as little as one dollar. However, most states currently
require actual damages in the form of compensatory payments rather than just nominal
damages or payments.
WRONGFUL DEATH STATUTES If a patient’s death has been caused by the physi-
cian’s negligence, the deceased person’s dependents and heirs may sue for wrongful
death. Some states have wrongful death statutes that allow the deceased person’s ben-
eficiaries (estate) and dependents to collect money from the offender to compensate
for the loss of future earnings to the estate. A plaintiff in a wrongful death suit does
not have to prove that he or she was completely dependent on the deceased person
for support but only that the death resulted in a financial loss. To win such a case, the
plaintiff must prove that the defendant’s actions were the “proximate,” or immediate,
cause of death.
Medical malpractice cases are state specific. Some states, such as Iowa, Missouri,
and Pennsylvania, allow the surviving spouse and children of a wrongful death victim
to sue for compensatory damages for the pain and suffering they experienced upon
the death of their loved one. However, many states have placed a cap on the amount of
money that can be awarded in wrongful death cases.
There are no federal malpractice laws. In common law practice, the government is
immune from wrongful death suits, although some state governments now allow suits
brought against state employees.
Fraud
Unlike negligence, which is an unintentional action that could lead to patient injury,
fraud is the deliberate concealment of the facts from another person for unlawful or
unfair gain. Fraud in health care includes a wide range of illegal actions: illegal billing
for services that may or may not have been rendered; receiving kickbacks for making
referrals for Medicare and Medicaid patients; dishonesty when conducting medical
research; embezzlement, particularly in the medical office; and the illegal sale of drugs.
130 PART 2 The Health Care Environment
Fraud in the health care setting is one of the fastest growing criminal areas. This is
especially true in the medical office. Therefore, it is paramount that medical assistants
remain vigilant when performing their duties. There have been many medical office
cases in which medical assistants were requested by their physician/employers to per-
form fraudulent acts. In every case, the medical assistant could have refused to perform
the actions that were either beyond his or her scope of practice or obviously fraudulent.
The civil fraud section of the Department of Justice allows provisions under the
False Claims Act (FCA) for the government to recover funds in the health care area. The
government need only prove a deliberate false claim and may obtain fines and penalties
as well as damages. The FCA states that the perpetrator must have knowledge of what
they have done, although it does not clearly define how to determine the “knowledge.”
Med Tip
“We become the choices that we make.”—St. Thomas Aquinas
Med Tip
Rationalizing (wrongly justifying) unethical behavior can take the form of convincing yourself
that it’s not really illegal . . . or that no one will find out . . . or that the organization (your
employer) will protect you. This type of rationalization is not only wrong, it can get you into
deep trouble.
In the case of People v. Gandotra, Dr. Gandotra hired three medical assistants to pro-
vide care for patients in his clinic. One of the medical assistants prescribed controlled
substances (Diazepam and Fiorinal with Codeine no. 3) to patients and to undercover
federal agents. Dr. Gandotra billed the state of California under his provider number for
the medical assistant’s unauthorized services. The court stated that the medical assis-
tants were not licensed to practice medicine or write prescriptions. Evidence was also
presented that Dr. Gandotra had presented claims for payment for services that were
never rendered. His wife, Rita, processed some of the fraudulent claims. As a result of
the fraudulent billing practices, Dr. Gandotra and his wife were both charged and con-
victed of felonies. They paid a fine of $30,000. The medical assistants were not charged
with criminal action (People v. Gandotra, 14 Cal. Rptr. 2d 896, 11th Cal. App. 1992).
In People v. Scofield, the Aetna Casualty and Surety Company charged that Scofield,
the patient, along with a physician, presented the company with a fraudulent insurance
claim. A medical assistant, who handled the overload of medical insurance work for the
office, was employed by the physician. The physician instructed her that his patients
were to be billed for treatments three times a week, regardless of whether actual treat-
ment was given. A second medical assistant stated during the grand jury hearing that
the same physician told her that his personal injury patients were not put in the regular
bookkeeping system; these patients had separate cards. She was told to prepare bills for
these patients showing treatments that were not reflected on the actual patient records.
The physician told her that it was office policy to submit fraudulent bills to insurance
companies for at least $100 to $300 worth of treatment, and then the defendant (Sco-
field, the patient,) and “we” (the physician and the medical assistant) would each get
$100. The court determined that the medical assistant did prepare the bills with guilty
knowledge of their fraudulent nature and purpose. However, she was not convicted of
aiding in the actual fraud. In this case, Scofield was sentenced to serve 90 days in the
county jail. The physician was not charged in this trial. The significance of this case for
medical personnel is that the two medical assistants are clearly named even though
they were not charged in the fraud (People v. Scofield, 95 Cal. Rptr, 405, Cal. App. 1971).
CHAPTER 6 Professional Liability and Medical Malpractice 131
In United States v. Busse, Dey, Lupulescu, and Failla, the defendants were charged
with participating in a scheme to generate fraudulent billings to Blue Cross and Blue
Shield of Michigan from their five medical/chiropractic health clinics. The chiroprac-
tors (Busse and Dey) would see the patients and then refer them to the medical side
of the clinic, knowing that no physician would be present to examine them. Instead,
several medical assistants became involved in the case when they used Dr. Lupules-
cu’s “standing medical orders” (SMOs) to take the patient’s medical history, record the
patient complaints, and order medical tests, including EKGs, ultrasound, and blood
and urinalysis tests. Blue Cross and Blue Shield were then billed for all of these tests.
Dr. Lupulescu visited the clinic one afternoon a week to see only the returning patients.
His new patients were routinely seen only by the medical assistants, who would then
order the tests in conjunction with his SMOs. He was indicted on 68 counts and was
convicted on 48 counts. Dr. Lupulescu was sentenced to 15 concurrent four-year prison
terms and fined $6,000. Dr. Dey was sentenced to five concurrent 18-month terms and
fined $5,000. Dr. Busse was convicted of aiding in the fraud but was not sentenced to
prison or fined. Mr. Failla, the business manager of the clinics, was also convicted of
criminal action. The medical assistants were not charged with fraud (U.S. v. Busse, Dey,
Lupulescu, and Failla, 833 F.2d 1014, U.S. App. 1987).
It appears that the medical assistants involved in the previously mentioned cases
were aware of the fraudulent activities taking place in their office or clinic, but they
were not charged in these cases.
Some of the most frequently cited areas of medical-related fraud include:
• Billing fraud, which includes billing for services not needed, billing for nonexistent
patients, or billing for products not needed or supplied.
• Overutilization of services such as treatments, including office visits, laboratory
tests, therapy, and prescriptions that are not necessary.
• Pharmacy fraud of billing for prescriptions and supplies that were not deliv-
ered or providing lower-priced generic medications and billing for higher-priced
medications.
• Durable equipment and supplies, which includes billing the patients for equipment,
such as wheelchairs and other devices, and unnecessary supplies.
• Legal scams such as workers’ compensation fraud and false injury claims.
• Kickbacks, which are improper payments in order to induce physicians and other
health care professionals to refer patients to a facility such as a hospital or insur-
ance company.
Med Tip
An allied health care professional must use caution when submitting patient claims for
medical reimbursement. Filing a false claim for programs such as Medicare or Medicaid is
a federal crime. The employee’s physician/employer could be severely fined and even lose
his or her license for this type of fraudulent act.
Office of the Inspector General
One of the major players in the war against health care fraud, such as false insurance
claims, is the Office of the Inspector General (OIG). This office was created to protect
the programs under the Department of Health and Human Services (HHS), such as
Medicare and Medicaid, from fraudulent activities. For example, health care payers
will use the diagnosis and procedure codes submitted by billing and coding person-
nel when making a decision to pay or deny a claim. It is important to determine if an
132 PART 2 The Health Care Environment
incorrect coding is the result of an error or a deliberate fraud. In a case such as this the
OIG, if consulted, would provide an advisory opinion. If the coding was found to be in
error, then it would have to be corrected. The party requesting the OIG’s opinion could
be prosecuted if the error is not corrected. The OIG reports problems with health care
programs to the Secretary of State and Congress and makes recommendations on how
to correct them. The Office of Counsel to the Inspector General:
• Provides legal services to the OIG
• Represents the OIG in civil cases tried under the False Claims Act
• Imposes money penalties on health care providers found guilty of fraud
• Issues fraud alerts
There are numerous federal statutes to avoid waste, fraud, and abuse in the health
care industry. The major areas of concern are:
• Additional costs to federal health care programs such as Medicare and Medicaid
• Quality of patient care
• Access to care
• Freedom of choice
• Competition
• Health care providers’ abuse of professional judgment
In general, most of the federal cases revolve around money—wrongful receipt of
state or federal funds, presenting false claims for reimbursement, or improper refer-
ral relationships (kickbacks and discounts). In many cases there have been stiff fines
and/or criminal penalties. False claims, which result in the loss of billions of dollars
each year, carry a stiff fine. In addition, the provider can be found liable for up to three
times the amount lawfully claimed. Because office staff, including nurses, are often the
persons designated to submit the insurance claims for payment, they need to be fully
aware of the consequences of providing false information.
See Table 6.2 for the federal government’s definition of what constitutes a “false
claim.”
An example of a false claim is a podiatrist who knowingly submitted claims to
Medicare and Medicaid for “nonroutine” surgical procedures when what he had actu-
ally done was trim the toenails and remove corns and calluses from patients.
The OIG accepts public comments relating to alerts. The address is Department of
Health and Human Services, Office of Inspector General, 330 Independence Avenue
SW, Room 5246, Washington, DC 20201.
• A claim for payment for services or supplies that were never provided
• A claim using a diagnosis code other than the true diagnosis code to obtain reimbursement for
services
• A claim indicating a higher level of service than that which was provided
• A claim for a service that the provider knew was not necessary
• A claim for services provided by an unlicensed individual
Table 6.2 False Claims (as defined by the federal government)
Med Tip
Remember that every person has the right to say “no” when asked to perform an activity
that is unethical, illegal, or against his or her own value system.
CHAPTER 6 Professional Liability and Medical Malpractice 133
Violation of Statutes
Every medical provider, including physicians, hospitals, nursing homes, and pharma-
cists, should be familiar with statutes that affect their particular discipline. For example,
in the case of Osborne v. McMasters, a drugstore clerk employed by McMasters sold a
bottle without a “poison” label to Osborne who then unknowingly took the poison and
died. The poison label was required by law (statute). A verdict was returned against the
defendant who then appealed the decision. The original judgment was held (affirmed)
because the statute required McMasters to use reasonable care to protect customers
from taking the wrong drug. This was found to be a breach of statutory duty that
resulted in injury to the plaintiff and was the proximate cause of death to Osborne
(Osborne v. McMasters, 41 N.W. 543 Minn. 1889). This example, while quite dated, is an
excellent example of the need to always use extreme care when dispensing medications
to patients.
Immunity for Charitable Organizations
In the past, under common law, tort immunity was granted to all charitable organiza-
tions on the theory that the charity was only working for the public good and not for
profit. However, this immunity has now been rejected in almost all states. The more
current belief is that charity is now a large-scale operation and should also include the
expense of liability insurance as part of doing business.
In the case of Abernathy v. Sisters of St. Mary’s, a patient suffered injuries as a result of
negligence by the hospital. The plaintiff originally lost the case on summary judgment.
However, upon appeal Abernathy won based on the court’s statement that charitable
organizations should not expect immunity from the law. The court stated, “Immunity
encourages neglect and irresponsibility, while liability promotes care and caution”
(Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 MO. 1969).
Defense to Malpractice Suits
After the plaintiff’s case has been presented, the defendant can put forward a defense,
called an affirmative defense, which allows the defendant (usually a physician or hos-
pital) to present evidence that the patient’s condition was the result of factors other
than the defendant’s negligence. The attorney for the physician will suggest defenses
grounded on law and truth that can be used to support the physician’s side in a lawsuit
relating to negligence. The most frequently used defense to negligence is denial. Other
defenses include assumption of risk, contributory negligence, comparative negligence,
borrowed servant, statute of limitations, and res judicata.
Med Tip
It is easier to prevent negligence than it is to defend it.
Denial Defense
The burden of proof, with the exception of res ipsa loquitur, is on the plaintiff (patient),
who must prove that the defendant (physician) did the wrongful or negligent action.
Therefore, the most common defense in a malpractice lawsuit is denial on the part of
the physician. A physician may deny that he or she performed a procedure. In some
cases patients are upset about the side effects of a treatment and will sue for negligence.
Even though unexpected side effects are undesirable, they are not generally the result of
negligence. Signed informed consent documents can assist a physician in proving that
134 PART 2 The Health Care Environment
he or she did explain potential side effects. It is up to a jury to determine if the plaintiff
proved the defendant most likely caused the injury. The physician may bring in expert
witnesses to substantiate that the standard of care was met.
Assumption of Risk
Assumption of risk is the legal defense that prevents a plaintiff from recovering dam-
ages if the plaintiff voluntarily accepts a risk associated with the activity. For example,
when people continue to smoke after reading health warnings found on cigarette pack-
aging or they are advised not to smoke by a physician, then they accept the risk when
they smoke. A medical professional who agrees to treat a person with a communi-
cable disease knows and assumes the risk of contracting the disease. A patient who
understands the risks associated with open-heart surgery and signs a consent form has
assumed those risks from complications of the surgery (but not because of negligence).
In order for this defense to be valid, the plaintiff must know and understand the
risk that is involved, and the choice to accept that risk must be voluntary. Patients
should be asked to sign an authorization for all procedures indicating that they under-
stand the risks involved, accept those risks, and give their consent for treatment.
Med Tip
The physician is solely responsible for explaining the risks of a treatment or procedure. If a
physician does delegate this function to a nurse, medical assistant, or physician assistant,
the physician still retains overall responsibility.
Med Tip
The Jenkins v. Bogalusa Community Medical Center case illustrates the importance of
specific and timely charting. Instructions given to the patient should always be noted in
the patient’s record.
Contributory Negligence
Contributory negligence refers to conduct or unreasonable behavior on the part of
the plaintiff that is a contributing cause of an injury. If it is determined that the patient
was fully, or in part, at fault for the injury, the patient may be barred from recovering
monetary damages, depending on how the state allocates damages. The concept is that
the plaintiff’s negligence in combination with the defendant’s negligence is the cause of
the plaintiff’s injuries or damages.
For example, in Jenkins v. Bogalusa Community Medical Center, a patient being treated
for arthritis was told not to get out of bed without ringing for assistance. He nonetheless
attempted to get out of bed and fell, fracturing his hip; he subsequently died from an
embolism following hip surgery. The court ruled that he contributed to his own death
by failing to follow instructions (Jenkins v. Bogalusa Comm. Medical Ctr., 340 So.2d 1065,
La. Ct. App. 1976).
Comparative Negligence
Comparative negligence is a defense very similar to contributory negligence in that
the plaintiff’s own negligence helped cause the injury. However, unlike contributory
negligence, which is a complete bar to recovery (meaning the plaintiff will recover
nothing), comparative negligence allows the plaintiff to recover damages based on the
amount of the defendant’s fault. For instance, if a physician is 60 percent at fault and the
CHAPTER 6 Professional Liability and Medical Malpractice 135
patient is 40 percent at fault and the patient suffers $100,000 in damages, the physician
will be required to pay $60,000.
A defense of comparative negligence has been used in cases in which the physician
may be proven negligent, but the patient, in failing to continue with follow-up care by
the physician, was also negligent, which added to the patient’s injury.
Med Tip
To be “grossly negligent” requires that a person intentionally fails to perform a necessary
duty.
Med Tip
A health care professional should have an understanding of what is right and wrong under
the law. Arguing that a negligent act was unintentional is not a defense. Remember that
ignorance of the law is not a defense.
Borrowed Servant
The borrowed servant doctrine is a special application of respondeat superior. This occurs
when an employer lends an employee to someone else. The employee remains the “ser-
vant” of the employer, but under the borrowed servant doctrine, the employer is not
liable for any negligence caused by the employee while in the service of a temporary
employer.
For instance, if a hospital (the employer) allows an operating room nurse to assist a
surgeon while in the operating room, the surgeon is “the captain of the ship” and directs
the work of the operating room nurse. Thus, under the borrowed servant doctrine, the
surgeon, not the hospital, is legally responsible for the nurse’s actions. However, the
employee still maintains responsibility for his or her actions.
Another example of a “borrowed servant” occurs when a hospital or nursing home
hires a nurse or assistant from an agency. Some courts have stated that the borrowed
servant doctrine is in effect and the employer of the nurse, the agency, cannot be held
liable. Other courts have used a “dual agency doctrine” stating that the nurse is an agent
of both the agency and the hospital or nursing home and, thus, both are liable for his
or her actions. In the case of an agency nurse or aide who goes into a patient’s home to
provide care, the agency and the employee are both liable.
Statute of Limitations
The statute of limitations protects a health care provider by limiting the time frame for
a lawsuit to be filed. As discussed in Chapter 3, all states have statutes of limitations.
In most states the statute of limitations begins to run when the injured patient becomes
aware of the injury. Different causes of action have different statutes of limitations. In
some states, the statute of limitations for negligence is longer than that for malpractice.
If too many years have passed since the events causing the injury, it is difficult to gather
witnesses, and the witnesses may have difficulty in correctly recalling what happened.
In general, the statute of limitations for negligence is from one to three years, depend-
ing on the state.
An exception to the statute of limitations is the rule of discovery. The statute of
limitations does not begin to “run” until the injury is discovered. In addition, it will
not begin to “run” if fraud is involved. In a Michigan case, a patient who had a thyroid-
ectomy suffered paralyzed vocal cords after the surgery. He was told it was because
136 PART 2 The Health Care Environment
of a calcium deficiency when, in fact, the vocal cords had been accidentally cut during
surgery. The statute of limitations would have run out in this case, but because fraud
(hiding the presence of the cut vocal cords) occurred, the statute did not begin to “run”
until the patient discovered the fraud (Buchanan v. Kull, 35 N.W.2d 351, Mich. 1949).
Health care professionals and their employees must be aware of the statute of
limitations in their state relating to retention of medical records.
Res Judicata
The term res, by itself, means “a thing, an object, or subject matter” such as the contents
of a will. Res judicata means “the thing has been decided” or “a matter decided by
judgment.” Thus, if a court decides a case, then the case is firmly decided between the
two parties, and the plaintiff cannot bring a new lawsuit on the same subject against
the same defendant. For example, according to res judicata, when a patient has sued a
hospital and won the case for an injury caused by a medication error, then that patient
cannot sue that hospital again for the same error.
Professional Liability
In the largest sense of the term, everyone is legally responsible or liable for his or her
own actions. Even children have caused injury to others. All homeowners, business
owners, and health care employers are responsible for accidents and other harmful acts
that take place on their property or premises.
Civil Liability Cases
As already discussed, physicians and other medical professionals may be sued under a
variety of legal theories, including negligence and respondeat superior. Unfortunately, a fear
of such lawsuits has influenced the practice of medicine. Some physicians and hospitals
have been reluctant to withdraw or withhold treatment at the specific directive of the
patient or family. A clearly stated refusal for continued treatment by an informed patient
should relieve the physician and hospital of the duty to continue treatment. In fact, if treat-
ment is continued after it has been refused by the patient, the health care provider could
be liable for battery. In a 1990 case, a federal appellate court ruled that a physician who
implanted a Hickman catheter into a minor child, based on a court order, could be sued for
the death of the child two weeks later from a massive pulmonary embolus. The court ruled
the physician committed battery because the court order was not properly obtained and,
therefore, was invalid. The father of the child, who had opposed the Hickman implant,
was eventually awarded $2 million (Bendiburg v. Dempsey, 19 F.3d. 557, 11th Cir. 1994).
Med Tip
Medical personnel must listen to and respect the patient’s wishes.
Physical Conditions of the Premises
Medical offices, clinics, and hospitals are required to exercise the same standard of care
as any other business that has a public facility and grounds. An institution may be liable
when regulatory standards have been violated, such as when an accident occurs in a
clinic that has not followed regulations for maintaining a safe environment for patients.
The institution may not be liable, however, if the plaintiff was aware of a situation that
could cause an injury and then chose to ignore it. For example, if someone walks on a
wet floor in spite of the caution sign, it is at his or her own risk.
CHAPTER 6 Professional Liability and Medical Malpractice 137
In the case of Rowland v. Christian, the plaintiff was injured by a cracked water
faucet handle on Christian’s property. The issue in this case was to determine if an
owner, who is aware of a concealed condition that presents an unreasonable risk of
harm to others, must warn of the danger or repair the condition. The court found in
favor of the plaintiff by ruling that a landowner owed a duty of ordinary care to any
persons who are invited onto property as well as trespassers. The result of this case
encourages owners of buildings, such as hospitals, medical offices, and clinics, to
warn of conditions, such as wet floors or construction (Rowland v. Christian, 443 P.2d
561, 1968).
Illegal Sale of Drugs
In most health care settings, access to controlled substances such as morphine and
Demerol may be available. One of the reasons to carefully screen all health care employ-
ees before employment is to determine if there is any history of drug possession or
abuse. There are documented instances of physicians and employees, ranging from
nurses to housekeeping personnel, who have been found guilty of stealing narcotic
drugs from the workplace and either using them personally or selling them. Easy access
to narcotics, coupled with a lack of proper security measures, can result in the loss of a
license, severe penalty, and even prison for the offender.
In some cases, narcotics that were meant for an ill patient have been stolen and
then documented as having been administered to the patient. The patient suffers as a
result of this deception.
Med Tip
Lawsuits involving the physical condition of hospitals and other medical facilities have
involved such cases as broken steps, malfunctioning elevators and doors, and defective
carpets. Every staff member must take responsibility for reporting and correcting defects
that could cause injury.
Med Tip
It’s important to always be alert for any indications of drug abuse among coworkers. Even
though it may be difficult to report a coworker’s abuse, it is necessary in order to get help
for the drug abuser and to protect patients and the reputation of the facility.
Promise to Cure
A promise to cure a patient with a certain procedure or form of treatment is con-
sidered under contract law rather than civil law (Figure 6.3). In a Michigan case, a
physician promised to cure a bleeding ulcer, and even though the physician was not
negligent in the care of the patient, he was found liable for breach of contract when
the treatment was unsuccessful. After this case, many states passed laws requiring
that all promises to cure must be in writing (Guilmet v. Campbell, 385 Mich. 57, 188
N.W.2d 601, 1971).
Med Tip
Always use caution when speaking to patients. A comment such as “I’m sure you’ll be
fine” could be taken as a verbal contract.
138 PART 2 The Health Care Environment
Law of Agency
The law of agency governs the legal relationship formed
between two people when one person agrees to perform work
for another person. For instance, in a medical office, the list of
agents for the physician includes physician assistants, nurses,
medical assistants, technicians, and even the cleaning staff if
they are hired and paid directly by the physician. In order to
protect the physician/employer from liability for negligence
under the doctrine of respondeat superior, the health care profes-
sional should:
• Have a written job description that clearly defines the respon-
sibilities, duties, and skills necessary for the job; if there is no
job description in place, ask for one to be written
• Use extreme care when performing his or her job
• Carry out only those procedures for which he or she is trained
• Be honest about any errors or inability to perform a procedure
One exception to the law of agency is the relationship
between the pharmacist and the physician. A pharmacist is
not an agent of the physician because the pharmacist is not
hired, fired, or paid directly by the physician. Therefore, in
this case the law of agency, or respondeat superior, has not been
established.
Altered Medical Records
The Federal Rules of Evidence allow medical records into courts as evidence under
the Uniform Business Records Act. Any time that a medical record has the appearance
of being altered or changed, it causes suspicion about the defendant’s motives. The
defendant, at the advice of his or her attorney, may end by settling a lawsuit in which
there was no malicious intent to lie but simply a poor charting technique. A settlement,
or agreement between both parties outside of the courtroom, may result in a payment
or other form of satisfaction. A settlement does not indicate guilt or innocence of the
defendant. It usually indicates that the defendant believes that he or she may not win
the lawsuit.
Med Tip
Never completely obliterate any notation on a chart. If a chart note is placed on an incorrect
chart, then cross through the notation with one line and state “Incorrect Chart.” Always
add your name after the correction.
FIGURE 6.3 Use Caution when Speaking with a Patient
© Design Pics Inc./Alamy
It is poor technique to leave spaces on the chart so that another person can add
statements later. While this may be done simply because another staff member was
not ready to chart, it gives the appearance that information was added back into the
chart at a later date in order to attempt to deceive. Many electronic health records have
protective barriers to help eliminate this problem.
Deliberate attempts to alter the medical record, to fabricate a medical record with
someone else’s name, or to lose a medical record can result in a defendant, such as a
physician or hospital, losing a negligence case. In some of these cases the physician or
hospital had no knowledge that the record was being altered. However, under the prin-
ciple of respondeat superior, the employer is held responsible for the employee’s action.
CHAPTER 6 Professional Liability and Medical Malpractice 139
Some lawyers, especially after losing a case, have been known to go back several
weeks later to request another copy of the medical records. They will check to see if
the record has been altered in any way since the trial ended. In one case, an LPN was
found not to be negligent in the first case, but was found guilty upon appeal when the
attorneys noted that the medical record had been changed after the trial ended. Even
though the LPN had not made any of the changes, and was apparently not guilty of the
original charges, nevertheless, upon appeal the original decision was overturned. The
judge wonders “why alter the record if you are innocent?”
Med Tip
The moral is to NEVER alter a medical record.
Who Is Liable?
Under the doctrine of respondeat superior, or “let the master answer,” discussed in Chap-
ter 3, the employer is liable for the consequences of the employee’s actions committed in
the scope of employment. The employer may not have done anything wrong yet still is
liable. For example, if a medical assistant in a physician’s office injures a patient while
taking a blood sample, the physician/employer can be liable for the action even if the
medical assistant was properly selected, well trained, and suitably assigned to the task.
Respondeat superior does not assign responsibility to anyone other than the employer.
Therefore, the immediate supervisor, if he or she is not the employer of the medical
assistant, is not the responsible party.
The doctrine of respondeat superior was implemented for the benefit of the patient,
not the employee. It is not meant to protect the employee. Thus, the patient can sue
both the physician and the employee. If both are found liable by the court, the plaintiff
may seek to collect money from either party; however, the plaintiff cannot collect twice.
The employer, if not at fault but forced to pay the plaintiff, can turn around and sue
the employee for those damages (St. John’s Reg. Health Ctr. v. American Cas. Co., 980 F.2d
1222, 8th Cir. 1992).
Strict liability, in law, is the concept that a person is liable for consequences flowing
from an activity even if the person doing the activity is not at fault. Product liability is
a type of strict liability in which the manufacturer or seller may be liable for any injury
caused by a defective or hazardous product it makes or sells. However, in a hospital
case in which a patient was injured when his hospital gown caught fire, the court found
the hospital also liable because it introduced the harmful product into the stream of
commerce.
Liability Insurance
In order to protect against the risk of being sued and ultimately held liable for the plain-
tiff’s injuries, most physicians carry liability and malpractice insurance. Liability insur-
ance is a contract by which one person promises to compensate or reimburse another if
he or she suffers a loss from a specific cause or a negligent act. Many insurance plans are
contingent on the insured person’s practicing good safety habits. For example, liability
coverage for buildings may be contingent on having a good fire alarm system.
In most cases, employers have a general liability policy to cover acts of their
employees during the course of carrying out their duties. Some physicians carry a
rider, or addition, to the policy that covers any negligence on the part of their assis-
tants. For example, if a patient falls and breaks a bone while getting off the exam table,
even though a medical assistant had warned the patient to sit up slowly and use the
footstool, the insurance company might settle, or come to an agreement about the case,
even though negligence was not found.
140 PART 2 The Health Care Environment
The two major types of liability insurance are claims-made insurance and occur-
rence insurance.
• Claims-made insurance covers the insured party for only the claims made dur-
ing the time period the policy is in effect (or policy year). For example, if an injury
occurred in one year but the claim for liability insurance coverage was made a year
later, then the claim would be denied. It is, therefore, important with claims-made
insurance to file claims reports in a timely manner, especially by the time of the
policy’s year end.
• Occurrence insurance (also called claims-incurred insurance) covers the insured
party for all injuries and incidents that occurred while the policy was in effect
(policy year), regardless of when they are reported to the insurer or the claim was
made. Under this type of policy, if an injury occurred in one year when the policy
was in effect, but the claim against the physician was made two years later, the
occurrence liability insurance would cover the claim. With occurrence insurance,
it is important to clearly document when an event took place.
Med Tip
Malpractice is a professional misconduct or a demonstration of an unreasonable lack of
skill with the result of injury, loss, or damage to the patient.
Malpractice Insurance
Because physicians treat the human body, not all medical outcomes are predictable or
desirable—sometimes through no fault of the physician. Therefore, physicians carry
malpractice insurance to cover any damages they must pay if they are sued for mal-
practice and lose. All licensed medical professionals, such as nurses and pharmacists,
should carry malpractice insurance. Unlicensed health care personnel, such as medi-
cal assistants, are usually covered under their physician/employer’s policy. However,
because of the litigious nature of today’s medical practice, many medical assistants also
carry their own malpractice insurance coverage. Most states require that physicians
carry malpractice insurance. In addition, nurses and other health care employees may
be required to have their own individual coverage.
Physicians’ malpractice insurance is expensive. Depending on the type of medical
practice, it can cost more than $100,000 a year. Coverage for obstetricians and ortho-
pedic surgeons is among the most expensive. As already mentioned, some physicians
carry a rider to these policies that covers malpractice suits based on injuries caused by
employees and assistants during the course of carrying out their duties. Such coverage
is important, again, because of the doctrine of respondeat superior.
Practicing Defensive Medicine
Unfortunately, many physicians find themselves in the position of practicing a type of
medicine that will help to protect them from lawsuits. This is referred to as defensive
medicine. It means that more and more tests and procedures will be ordered for each
patient in order to avoid a lawsuit. The result of this practice is twofold: The patient
will have to undergo additional, and often painful, tests and procedures, and the cost of
health care will increase. In addition, the use of specialists by primary care physicians
has greatly increased. Some medical specialties such as orthopedics and obstetrics are
especially prone to litigation. The result is that, in some parts of the country, there is now
a lack of specialists, such as obstetricians, because the cost of their malpractice insurance
has become too expensive. The use of specialists has also meant that, in some cases, there
is a reduced relationship between the primary care physician and the patient, resulting in
a greater propensity for patients to sue if displeased with their medical outcomes.
CHAPTER 6 Professional Liability and Medical Malpractice 141
Defensive medicine becomes problematic if a physician becomes reluctant to
attempt some of the more risky, yet potentially effective, procedures for fear of a law-
suit. A more conservative approach might result in a poor outcome, and even death,
of the patient.
A research study was conducted to determine if a physician’s behavior affected
whether he or she would be the target of a lawsuit. The result of this limited study
showed that physicians in a hospital setting who took time to talk with the patients in
an unhurried manner, sit on the side of their bed, and even hold their hand while talking
with them were almost never sued, even when there might have been some unexpected
problems. On the other hand, physicians who merely stood in the doorway and asked
how the patient was feeling and then quickly walked away were much more prone to
a lawsuit if the patient was dissatisfied with the outcome of his or her illness.
Physicians are aware of the need to hire employees who are skilled in their profes-
sional duties as well as able to project a warm and caring attitude toward their patients.
In some cases, an unhappy employee will reflect negatively on a patient’s attitude
toward the physician even if he or she is quite competent.
While it is usually a physician who practices defensive medicine, it can often be
another health care professional who documents what has been done. Narrative docu-
mentation that is performed once a shift in either a hospital or nursing home does
not always convey exactly what was done for the patient. For example, stating in the
medical record “Patient required one-on-one monitoring” is clearly inaccurate because
it is not possible unless there is a person assigned to only that patient. If there is once-
a-month documentation, such as is commonly done in some nursing homes, the court
may find that there is a “lack of monitoring” the patient because it appears that he or
she was only monitored on that one date.
Med Tip
Although there is not a law that states, “If you didn’t document it, you didn’t do it,” it’s dif-
ficult to defend a practice that isn’t documented.
Alternative Dispute Resolution
Using methods other than going to court to solve civil disputes is called alternative
dispute resolution (ADR). The process of arbitration, which involves submitting a
dispute to a person other than a judge, is becoming a popular means for resolving a civil
dispute. This third person, called an arbitrator, issues a binding decision after hearing
both sides present witnesses and facts or evidence relating to their cases. However, for
the arbitrator’s decision to be binding, both parties (the patient and physician) must
agree ahead of time to accept the decision of the arbitrator. The selection of an arbitrator
must be agreed upon by both sides. This can be a time-consuming process.
In addition to arbitration, other methods include mediation and a combination of
the two methods referred to as med-arb. Mediation involves using the opinion of a
neutral third person for a nonbinding decision. The mediator listens to both sides of the
dispute and then assists the parties in finding a solution. Using arbitration, mediation,
or a combination of the two methods for deciding a civil case can save money and time.
Liability of Other Health Professionals
Not all cases of employee negligence are covered under the doctrine of respondeat supe-
rior. Also, physicians are not the only medical professionals liable for negligence. It is
important to note that physicians retain responsibility for the mid-level health care
142 PART 2 The Health Care Environment
professionals working for them. The following discussion summarizes some cases illus-
trating negligence lawsuits against other medical professionals.
Dental Assistant
In a South Carolina case, a patient sued a dental clinic and a dental assistant after the
assistant, who was not supervised by the dentist, cut the patient’s tongue with a sharp
instrument. The court held that the dental assistant performed a breach of duty to the
patient. The clinic was also held liable (Hickman v. Sexton Dental Clinic, P.A. 367 S.E.2d.
453, S.C. CT. App. 1988).
Laboratory Technician
Medical employees who make repeated errors are not only liable for their errors but also
subject to discharge. For instance, in Barnes Hospital v. Missouri Commission on Human
Rights, a hospital fired a laboratory technician for inferior work performance when he
mismatched blood on three occasions. The employee alleged that racial discrimination
was the reason for his dismissal. The Supreme Court of Missouri determined that the
evidence did not support racial discrimination and upheld the lower court’s finding
that he was justly discharged (Barnes Hospital v. Missouri Commission on Human Rights,
661 S.W.2d 534, Mo. 1983).
Using improper technique or reagents to conduct laboratory tests can be a breach
of duty. In Insurance Company of North America v. Prieto, a federal appellate court found a
hospital liable when a laboratory technician used sodium hydroxide instead of sodium
chloride to perform a gastric (stomach) cytology (cell) test (Insurance Co. of N. Am.
v. Prieto, 442 F.2d 1033 6th Cir. 1971).
Medical Assistant
In the case of Landau v. Medical Board of California, Dr. Landau appealed a lower court’s
decision to remove her medical license. The lower court found her guilty of allowing her
medical assistant to evaluate and remove lesions for biopsy from patients. Dr. Landau
was found guilty of gross negligence by allowing an untrained and unlicensed medi-
cal assistant to remove tissue, such as moles, from patients for biopsy purposes. The
court stated that Dr. Landau’s failure to follow up with two of the patients constituted
an extreme departure from standard of care and had serious consequences—one of
the patients died. Dr. Landau’s license to practice medicine was revoked. The medical
assistant was not charged (Landau v. Medical Board of California, 71 Cal. Rptr. 2d 54, Cal.
App. 1998).
In the previous case, the medical assistant did not refuse to perform the task given
to her by Dr. Landau. However, she was, in fact, named in the litigation, although the
principle of respondeat superior was ultimately followed.
Med Tip
Medical assistants cannot count on never being named or prosecuted in a lawsuit.
Nurse
When nurses exceed their scope of practice, they violate their nursing license and may
be performing tasks that are reserved by statute for another health care professional,
such as a physician. Because of the shortage of nurses, their responsibilities are ever-
increasing, which may lead to actions that result in malpractice. However, nurses have
not generally been involved in lawsuits for exceeding their scope of practice, or license,
unless they also acted negligently.
CHAPTER 6 Professional Liability and Medical Malpractice 143
There have been many lawsuits against hospitals in which nurses were cited for
errors, failing to perform CPR, and failing to alert the physician regarding their patient’s
condition. A research study of 43,329 nurses conducted by the University of Pennsylva-
nia found that, in many cases, nurses felt overwhelmed and worried about the quality
of care they provided to their patients. Some of this “burnout” is blamed on the short-
age of nurses.
Nursing supervisors have been found negligent for not establishing procedures for
the nursing staff that are designed to protect patients. In an Illinois case, the director
of nursing was found negligent for failing to develop standards to prevent accidents
involving excessive temperatures while bathing patients (Moon Lake Convalescent Center
v. Margolis, 435 N.E.2d 956, Ill. App. Ct. 1989).
Med Tip
Remember that “nurse” means a person is a registered nurse (R.N.). The general public
often gives all persons wearing a white uniform the title “nurse.” A person who is not an
R.N. must correct anyone who addresses him or her as “nurse.”
In Quinby v. Morrow, a patient recovered damages against a surgeon, the instru-
ment nurse, and the hospital for a burn suffered when a hot metal gag was placed in
the patient’s mouth, causing third-degree burns (Quinby v. Morrow, 340 F.2d 584, 2d
Cir. 1965).
A nurse was found negligent in a Florida case when she continued to inject a saline
solution into an unconscious patient after she noticed the solution’s ill effects on the
patient (Parrish v. Clark, 145 So. 848, Fla. 1933).
A nurse was held liable in a Massachusetts case in which a patient who had received
a strong sleeping medication fell out of the hospital bed, fracturing her hip. The nurse
had left the bedside rails down and, thus, had failed to exercise due care (Polonsky v.
Union Hospital, 418 N.E.2d 620, Mass. App. Ct. 1981).
Nursing Assistant
A nursing assistant in a Mississippi nursing home was attempting to lift a patient into a
whirlpool bath using a hydraulic lifting device. The seat on the device became discon-
nected, causing the patient to fall and fracture a hip. The nursing assistant was found
negligent for improperly connecting the seat to the lift device (Kern v. Gulf Coast Nursing
Home, Inc., 502 So.2d 1198, Miss. 1987).
Paramedic or Other EMS Provider
Most states have statutes that provide civil immunity for paramedics and other EMS
providers who provide emergency life-saving care. In Morena v. South Hills Health Sys-
tems, the Pennsylvania Supreme Court held that paramedics were not negligent when
they transported a shooting victim to the nearest hospital rather than a hospital five
miles away that had a thoracic surgeon. The court stated that paramedics were not
capable of determining the extent of the patient’s injury (Morena v. South Hills Health
Systems, 462 A.2d 680, Pa. 1983).
Pharmacist
A pharmacist in New York violated statutes covering the sale of controlled sub-
stances. He was found negligent relating to the sale of codeine cough substances,
and his license was revoked to protect the public (Heller v. Ambach, 433 N.Y.S.2d
281, 1979).
144 PART 2 The Health Care Environment
Physical Therapist
A physical therapist who refused to allow an 82-year-old nursing home resident to use
the bathroom before beginning a therapy session, resulting in the patient urinating
during the session, was found by the court to be negligent. The therapist appealed the
decision, claiming that her refusal to allow the patient to use the bathroom was a mere
error in judgment regarding whether the patient really needed the bathroom break,
and thus was not negligence. The state supreme court upheld the lower court’s rul-
ing, finding that the nursing home had a clear policy, known to and followed by other
employees, of allowing patients to use the bathroom whenever they expressed a need,
and therefore the therapist was negligent of the patient’s health and welfare (Zucker v.
Axelrod, 527 N.Y.S.2d 937, 1988).
Physician Assistant (PA)
The role of the physician assistant, as determined in the 1970s, was meant to assist a
physician in the primary care of a patient. Today, many physicians hire a licensed PA
to help them with their patient care. The physician (employer) provides oversight of
the PA’s practice. The PA is able to legally perform more procedures than a registered
nurse, but PAs cannot perform all the duties of a physician. A PA, in most states, is
able to assess and evaluate patients’ conditions, perform physical examinations, suture
wounds, change dressings, and prescribe and administer medications. However, a
problem can result when there is no physician oversight, such as when an HMO or a
prison hires only a PA.
In the case of Mandel v. Doe, the county entered into a “Memo of Understanding”
with its health department to provide medical care to the inmates of the county prison.
This plan called for the PA to be supervised by a doctor, but the practice developed to
the point where the PA was subject to no supervision or review. The court found that
there was no final review of the PA’s actions, therefore, the county was liable for any
negligence on the part of the PA as it had given the PA the power to act (Mandel v. Doe,
888 F.2d 783, 11th Cir., Cal. 1989).
Respiratory Therapist
All health care professionals are required to report unusual situations to their super-
visors. If they do not, they are negligent in their duties. In an Indiana case involving
an inhalation therapist and a nurse, the court found the two negligent in failing to
report to their supervisor that an endotracheal tube had been left in a patient lon-
ger than the usual three to four days. The patient suffered injury from the tube and
needed several surgical procedures to remove scar tissue and open her voice box.
Subsequently, the patient required a tracheotomy to breathe and was only able to
speak in a whisper at the trial (Poor Sisters of St. Francis v. Catron, 435 N.E.2d 305,
Ind. Ct. App. 1982).
Med Tip
The message in the previously mentioned cases warns the health care professional to only
practice within the scope of your training. There are times when a health care professional
must refuse to perform a task.
It’s wise to talk to risk management about the need to complete an incident report
whenever an unusual situation occurs. This report, which accurately reflects the time,
date, and facts of the situation, can be subpoenaed by the court in the event of a neg-
ligence lawsuit.
CHAPTER 6 Professional Liability and Medical Malpractice 145
Tort Reform
Malpractice reform, also referred to as tort reform, is a controversial issue. According to
the National Conference of State Legislatures, 32 states have passed reforms in which
some of them limit an injured person’s ability to sue. In some states there is a cap on
damage awards. Physicians, insurance companies, and other business interests want
reform that will help to shield them from the high costs of lawsuits. On the other hand,
patient advocate groups believe that entering into a lawsuit is the only choice left for
many people who have been harmed by the health care they received. Some of the tort
reforms have resulted in jury awards that are too small to make the lawsuit worthwhile
for the patients or their families by the time the attorneys have been paid.
In the United States, punitive damages are rarely awarded—although they are avail-
able and are sometimes quite staggering in amount (millions). For example, in 1999,
a Los Angeles county jury awarded $4.8 billion in punitive damages against General
Motors to a group of six burn victims whose 1979 Chevrolet Malibu was rear-ended by
a drunk driver, causing it to catch fire. This was later reduced to $1.2 billion by the judge.
Tort compensation more easily applies to property damage where the value can be
assessed. However, it is difficult to quantify damages to a person’s body and mind—so
there is no fixed dollar amount that the court can relate to the severity of injury. For
example, in the United Kingdom, there is a specific amount awarded for the loss of a
thumb, arm, or leg. Also, it is difficult to place a dollar amount on a person’s pain and
suffering.
Malpractice cases have caused some physicians to leave their practice of medicine
even though they were not found to be negligent. Malpractice cases may take years
before the case makes it into a courtroom or settlement. One physician writes about a
lawsuit in which she was sued by the patient’s family after the mother’s death from an
aggressive colon cancer that was unexpected and very fast. The physician states that
she treated the patient as she would wish to be treated. She believes that the patient’s
children were coping with many emotions over their mother’s death and that filing a
malpractice suit helped them cope with their anger and frustration. This physician said,
“I loved my patients and my practice, but this made me wary and mistrustful of them—
and myself.” Even though her insurance company would likely cover any settlement,
the experience was devastating for this physician. A trial date was scheduled four years
after the patient’s death occurred. During the intervening four years, this physician
closed her primary care practice of almost 30 years. Eleven days before the trial, the
plaintiff’s lawyers asked to withdraw from the case. The family asked for a continuance
of the case, which the judge denied. Finally, the family agreed to drop the case because
it appeared unlikely that they would win. This physician cited all the wasted time in the
more than four years since the death occurred, the emotional anguish, and the $150,000
spent by her insurance company in the run-up to the trial. Not to mention giving up
her 30-year practice.
Malpractice Prevention
You have a legal duty not to inflict harm to a patient. Take everything that you do
seriously even when you think it is not an issue. And always be careful what you say
in front of a patient.
Med Tip
Be aware that any written records that you personally keep at home, such as a journal,
can also be subpoenaed.
146 PART 2 The Health Care Environment
Guidelines for Malpractice Prevention
General guidelines for malpractice prevention also include concerns for safety, com-
munications, and documentation.
General Guidelines
• Always act within your scope of practice.
• Make certain that all staff have a clear understanding of what conduct is unlawful.
• Provide in-service training on what is meant by standard of care and professional
conduct.
• Do not make promises of a cure or recovery.
• Treat all patients with courtesy and respect. Unfortunately, some patients tend to
sue people they do not like (Figure 6.4).
• Avoid having patients spend more than 20 minutes in the waiting room. Explain
the reason for any delays in treatment.
• Always carefully identify the patient before beginning treatment. When a patient
identification bracelet is available, use that to identify the patient as well as address-
ing the patient by name.
• Never attempt to provide care beyond the scope of your training or experience.
• Physicians should avoid diagnosing and prescribing medications over the tele-
phone whenever possible.
• Provide ongoing continuing education and training for all staff.
• Do not criticize other staff members or your employer in public areas where
patients could overhear your comments.
Safety
• Always make sure that patients use their assistive devices, such as canes and walk-
ers, when they are in your facility. Don’t let them leave these devices in the waiting
room.
• Have periodic inspections of all equipment.
• Check electrical cords to make sure they are grounded.
• Keep all equipment in safe condition and ready to use.
• Keep floors clear and clean.
FIGURE 6.4 Malpractice Prevention Includes Treating
Patients with Courtesy and Respect
CHAPTER 6 Professional Liability and Medical Malpractice 147
• Open doors carefully to avoid injuring someone on the other side of the door.
• Provide a mechanism to ensure that all doors and windows, and drawers if neces-
sary, are locked.
• Lock up all controlled substances (narcotics).
• Place warning signs regarding wet floors, fresh paint, construction, and other slip-
pery or unsafe conditions.
• Handle biohazardous waste and sharps such as needles by placing them in the
correctly labeled containers.
• Know and follow Occupational Safety and Health Administration (OSHA) safety
guidelines.
• Have a disaster plan and provide periodic drills, including fire, for the staff.
Communication
• Make yourself very clear about what you are saying. For example, “This does not
seem to be the correct dose” rather than “This does not seem right.”
• Maintain confidentiality concerning all patient information and conversations and
never discuss within hearing distance of other patients.
• Return telephone calls to patients as soon as possible.
• Refrain from criticizing other medical professionals.
• Discuss all fees before beginning treatment.
• Provide emergency telephone numbers for patients to use when the office is closed.
• Take all patient complaints seriously.
• Use a coding system, such as the last four digits of the patient’s Social Security
number, on the patient registration log rather than the patient’s name.
• Listen carefully to all the patient’s remarks. Communicate the patient’s concerns
to the entire health care team.
• If the physician must withdraw from a case, fully inform the patient of the with-
drawal in writing and provide enough notice (30 to 60 days) for the patient to
acquire another physician.
• Call patients at home, either the afternoon of outpatient (day) surgery or the fol-
lowing day, to check on their progress. Document this phone call.
• Follow up on all missed and canceled appointments.
• Inform patients of all risks associated with any treatment and assure they under-
stand and, in writing, agree to accept the risks.
• Place all special instructions for patients in writing and maintain one copy for the
medical record.
Documentation
• Prepare an incident report to document any unusual occurrence in the medical
office, clinic, laboratory, or hospital.
• Maintain an accurate log in the patient’s chart of all telephone conversations.
• Carefully document in the patient’s medical record all prescription and refill orders.
• Make sure that signed consent forms are obtained before beginning any treatment
or procedure.
• Document all missed appointments and cancellations in the patient’s medical record.
• Document whenever it is necessary to withdraw from caring for a patient.
• Keep all paperwork current.
148 PART 2 The Health Care Environment
• Make sure that the physician has read and initialed all diagnostic test reports before
filing them.
• Do not do “blame charting” by including criticism of a physician or other staff
member in the patient’s medical record.
• NEVER alter the medical record! If the medical record is maintained by pen and
paper, NEVER use “white-out” or any other type of correction liquid or tape. Make
any corrections by the acceptable method of drawing a single line through the error,
writing correction above the error, dating the change, and initialing it. If using an
electronic medical record, make corrections according to the standards set by your
physician/employer.
• Do not delete or alter what another person has charted in the medical record, even if
it is clearly incorrect. Contact the supervisor or risk manager with this information.
• Enter all telephone orders from physicians on the patient’s chart. If there is a con-
cern that the physician may not countersign the order, then have another staff nurse
on the phone line who will then sign the chart as a witness.
• Carefully document patient discharge notes on the medical chart. Give the patient
a written copy of all discharge instructions.
• Never leave any spaces for a “late entry” in the medical record. It is a better practice
to actually write a late entry when time allows and mark it as such. Remember to
accurately note the time and date when the late entry was made. Never add per-
sonal notes such as “Too busy to chart yesterday.”
• Don’t just document, “Dr. called . . . ” Be sure to include the physician’s name such
as “Dr. Williams called . . . ”
Discussion Questions
1. List five ways to prevent malpractice based on good
communication.
2. Give examples of malpractice cases involving health
care workers, other than physicians, as discussed in
this chapter. Discuss the main issues in the case. It is
not necessary to memorize the case citations.
3. Name and discuss the four Ds of negligence.
4. Discuss the law of agency and why it is an important
concept for the health care worker to understand.
5. Explain the difference between malfeasance, misfea-
sance, and nonfeasance.
6. What is an exception to the statute of limitations?
7. Why do you need a thorough understanding of the
law as it impacts your employer’s practice?
8. State 10 steps that may protect a physician and staff
from liability.
Points to Ponder
1. Is it true that if a patient is injured through no fault of
yours, you could still be sued for negligence?
2. If you are trained in CPR and fail to use it on a patient
in your facility, could you be sued for malpractice
(nonfeasance)?
3. Do all four Ds of negligence need to be present in order
to obtain a judgment of negligence against a physician?
4. Does the doctrine of res ipsa loquitur apply to all health
care professionals or only to physicians?
5. Can an employee be sued even if the employer
(physician) is liable under the doctrine of respondeat
superior?
Chapter Review6
CHAPTER 6 Professional Liability and Medical Malpractice 149
Review Challenge
Short Answer Questions
1. What are six guidelines for malpractice prevention
relating to safety?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What is the difference between claims-made and
occurrence insurance?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. Give two examples of assumption of risk.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. Is the rule of discovery an exception to the statute of
limitations?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. Discuss the difference between comparative negli-
gence and contributory negligence.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What is the role of the Office of Inspector General?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What are six examples of fraud in medical practice?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. You drop a sterile packet of gauze on the floor. The
inside of the packet is still considered sterile; however,
the policy in your office is to re-sterilize anything that
drops on the floor. This is the last sterile packet on the
shelf and the physician is waiting for it. The chances
are very slight that any infection would result from
using the gauze within the packet. What do you do?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
COLUMN A
_____ 1. liable
_____ 2. rider
_____ 3. tort
_____ 4. proximate
_____ 5. misfeasance
_____ 6. nonfeasance
_____ 7. res ipsa loquitur
_____ 8. res judicata
_____ 9. cap
_____ 10. dereliction
COLUMN B
a. “the thing has been decided”
b. improper doing of a lawful act
c. legally responsible for one’s actions
d. “the thing speaks for itself”
e. neglect
f. add-on to an insurance policy
g. failure to perform a necessary action
h. limit
i. a civil wrong
j. direct cause of injury
Matching
Match the responses in column B with the correct term in column A.
150 PART 2 The Health Care Environment
Multiple Choice
Select the one best answer to the following statements:
1. Carl Simon, a pharmacy technician, fills a prescription
for Coumadin, a blood-thinning agent, for Beth
White. He hands Beth the prescription without giving
her any instructions. Beth has been taking large doses
of aspirin for arthritis. The combination of aspirin and
Coumadin could cause excessive bleeding when Beth
takes them together. What is the legal term to describe
a potential liability that Carl may have committed?
a. malfeasance
b. misfeasance
c. nonfeasance
d. arbitration
e. standard of proof
2. Emily King mistakenly administers syrup of ipecac,
which causes vomiting, instead of syrup of cola,
which soothes the stomach lining, to Jacob Freeman.
Jacob immediately begins to vomit. Which term could
be used to describe Emily’s action?
a. res judicata
b. res ipsa loquitur
c. nonfeasance
d. misfeasance
e. rider
3. Which of the four Ds is violated when a physician
fails to inform the patient about the risks of not
receiving treatment?
a. duty
b. dereliction
c. direct cause
d. damages
e. none of the above is correct
4. A phlebotomist draws blood from Sam Ford’s right
arm. Sam experiences pain and numbness in that
arm immediately after the blood is drawn. This is an
example of what legal doctrine?
a. duty
b. feasance
c. res judicata
d. proximate cause
e. rider
5. Allan Walker continues to smoke after his physician
warns him that smoking carries the risk of lung cancer.
His physician documents this admonition in Allan’s
medical record. When Allan develops lung cancer, he
sues his doctor for malpractice. Allan states that he did
not know about the risk of continued smoking. What
malpractice defense might apply in this case?
a. denial
b. assumption of risk
c. contributory negligence
d. borrowed servant
e. b and c both apply
6. Once the court has decided a case and the appeals
process is over, there can be no new lawsuit on the
same subject between the same two parties. This is
referred to as
a. statute of limitations.
b. res ipsa loquitur.
c. res judicata.
d. contributory negligence.
e. comparative negligence.
7. To cover their employees, some physicians carry
additional insurance that is added onto the
physician’s liability insurance. This is called a
a. liability.
b. rider.
c. tort.
d. cap.
e. standard of proof.
8. In a medical office, the list of agents for the physician
includes the
a. nurse, medical assistant, and LPN.
b. technicians.
c. cleaning staff.
d. a and b only.
e. a, b, and c.
9. The doctrine of respondeat superior does not apply
between the physician and the
a. nurse.
b. medical assistant.
c. phlebotomist.
d. pharmacist.
e. physical therapist.
10. Using a third person to help settle a dispute in a
nonbinding decision is called
a. mediation.
b. arbitration.
c. malpractice lawsuit.
d. civil lawsuit.
e. none of the above.
CHAPTER 6 Professional Liability and Medical Malpractice 151
Discussion Cases
1. Jessica Mass, a phlebotomist, drew a blood sample from
Glenn Ross, a 30-year-old patient of Dr. Williams, to test
for AIDS. As Glenn was leaving the office, his friend Harry
came in and they greeted each other. Jessica took Harry
into an exam room, and in the course of making conver-
sation, he told her that he was a good friend of Glenn’s.
He asked Jessica why Glenn was seeing the doctor.
Jessica responded that it was just for a test for AIDS.
When Harry arrived back home, he called Glenn and
told him what the phlebotomist had said. Glenn called
Dr. Williams and complained about Jessica’s action and
said that he planned to sue Dr. Williams. Dr. Williams
dismissed Jessica. Dr. Williams told Jessica that if Glenn
did bring a lawsuit against her and she lost, then she
would sue Jessica.
a. What should Jessica have done or said when Harry
asked about Glenn’s reason for being in the office?
____________________________________________
____________________________________________
b. Did Dr. Williams have a legal right to sue Jessica if she
was sued and lost?
____________________________________________
____________________________________________
c. What important right did Jessica violate?
____________________________________________
____________________________________________
2. Denise, an LPN, works in a nursing home on the 3:00
to 11:00 pm shift. She is instructed to prepare medica-
tions to give to her own patients as they eat their evening
meal. She is also told that it is the policy of the nursing
home that she will also prepare all the medications to
be distributed in the morning by the LPN who will pass
medications at both breakfast and lunch the next day.
Denise is told that the reason for doing this is because
she will have more time, as the evening shift is not as
busy as the morning shift. Denise does not want to object
because she really needs the job.
a. What are the potential problems with this policy?
____________________________________________
____________________________________________
b. What should Denise do?
____________________________________________
____________________________________________
c. If a patient is harmed by receiving the incorrect medi-
cine, who would be charged with the negligence?
____________________________________________
____________________________________________
3. David, an 89-year-old war hero with no living relatives,
drove himself at night to a local hospital when he expe-
rienced shortness of breath and a headache. When he
entered the emergency room (ER) he was placed in a
wheelchair and briefly seen by an ER doctor. He was told
that he could not be admitted because he was a veteran
and had to go to a VA hospital, which was 90 minutes
away, for treatment. David was wheeled into the hallway
to wait for transportation to a VA hospital. The night shift
was very busy. After sitting in the hall for five hours, David
complained that he needed to lie down. The ER staff,
who had been trying to move him to a VA hospital with no
luck, finally transferred him by ambulance to a local nurs-
ing home. David had a massive stroke shortly after being
admitted to the nursing home and died six weeks later.
a. Does there appear to be negligence in this case?
____________________________________________
____________________________________________
b. In your opinion, who might have acted on behalf of
David?
____________________________________________
____________________________________________
c. In your opinion, would contributory negligence be a
defense if there is a malpractice lawsuit relating to
David’s death?
____________________________________________
____________________________________________
Put It Into Practice
Call an insurance company that handles malpractice insurance. Inquire about the cost
and coverage for someone in your profession. Request an informational brochure. Write
a summary of the information and report back to your class or your instructor.
152 PART 2 The Health Care Environment
Web Hunt
Using the website for the Institute for Healthcare Improvement (www.ihi.org) under
Case Studies, examine one of the latest studies on the website—and state what, in your
opinion, went wrong. For example, the case titled “An Extended Stay.”
Critical Thinking Exercise
What would you do if you observe the physician you work for exhibiting signs of care-
lessness when treating patients and documenting the treatment.
Bibliography
Aiken, T. 2008. Legal and ethical issues in health occupations. Philadelphia:
Saunders.
Baker, K., & A. Peterson. 2004. Corporate ethics and governance in the
health care marketplace conference: An interdisciplinary discussion.
Seattle: Williams, Kastner, & Gibbs, PLLC (February 27).
Beaman, N., & L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Becker, A. 2009. State disciplines hospital. Hartford Courant (May 28),
1, 3.
Black, H. 2014. Black’s law dictionary (8th ed.). St. Paul, MN: West
Publishing.
Bonner, L. 2008. Report rips N.C. hospital staff. Chicago Tribune (August
20), 9.
Glannon, J. 2015. The law of torts: Examples and explanations. New York:
Wolters Kluwer.
Guido, G. 2013. Legal and ethical issues in nursing. Upper Saddle River,
NJ: Prentice Hall.
Hall, M., & M. Bobinski. 2014. Health care law and ethics in a nutshell.
St. Paul, MN: West Publishing.
Malnic, E. 2000. GM files appeal of 1.2 billion verdict, calling trial
unfair. Los Angeles Times (December 7), 1.
McWay, D. 2009. Legal aspects of health care. New York: Delmar.
Savitsky, J. 2009. A patient dies, and then the anguish of litigation.
New York Times (December 29), D5.
Schmalleger, F. 2015. Criminal justice today. Upper Saddle River, NJ:
Pearson/Prentice Hall.
Taber’s cyclopedic medical dictionary (21st ed.). 2017. Philadelphia: F.A.
Davis.
http://www.ihi.org/
153
Chapter 7
Public Duties of the Health
Care Professional
Learning Objectives
After completing this chapter, you will be able to:
7.1 Define the key terms.
7.2 Describe the public duties of a physician.
7.3 Discuss the guidelines that should be used
when completing a legal record or certificate.
7.4 List the information that must be included
on a death certificate.
7.5 Describe the cases in which a coroner or
health official would have to sign a death
certificate.
7.6 List 10 reportable communicable diseases.
7.7 Discuss the Child Abuse Prevention and
Treatment Act of 1974.
7.8 Describe eight signs that indicate a child,
spouse, or elderly person may be abused.
7.9 Discuss the federal legislation of controlled
substances.
7.10 List and explain the five schedules of drugs.
7.11 Explain how an Employee Assistance
Program (EAP) can help troubled
employees.
Key Terms
Abuse
Addiction
Autopsy
Bureau of Narcotics and Dangerous
Drugs (BNDD)
Compounding
Controlled Substances Act of 1970
Coroner
Data
Dispensing
Drug Enforcement Administration
(DEA)
Employee Assistance Program
(EAP)
Food and Drug Administration
(FDA)
Forensic medicine
Habituation
Inquest
Medical examiner
Morbidity rate
Mortality rate
Opioids
Postmortem
Probable cause
Public duties
Restraining or protective order
Retailing
Safety data sheet (SDS)
Vital statistics
154 PART 2 The Health Care Environment
The Case of Brian B. and the Medical File
Brian B. is taken into an exam room in the office of Dr. K. by the
medical assistant, Amy. Amy gets into an animated discussion
with Brian about their mutually favorite baseball team. As Amy
leaves the exam room she accidentally places Brian’s medical file
on the counter. While Brian waits for Dr. K., he reads through his
file folder. He is shocked to discover that his recent test for AIDS
came back positive. Brian panics and runs out of the office before
seeing Dr. K. The doctor tries to reach Brian by phone but there
is no answer. Dr. K. then sends a letter marked “Confidential” to
Brian and explains that he must be treated for his disease and
also needs to inform his sexual partners about his diagnosis. Brian
does not respond to the letter.
1. What else can Dr. K. do to meet his obligation to report
a communicable disease?
2. What responsibility does the medical assistant, Amy, have
relating to this problem?
3. How might Brian be encouraged to report his condition
to his sexual partners?
Introduction
In order to protect the health of all citizens, each state has passed public health statutes
requiring that certain information be reported to state and federal authorities. These
statutes help protect the public from unsanitary conditions in public facilities such as
restaurants and restrooms, and they require the examination of water supplies. Physi-
cians and other health care workers must inform the government when a situation may
affect public health, such as in the case of communicable diseases.
Public Health Records and Vital Statistics
Important events, or vital statistics, in a person’s life, such as birth and death dates,
are used by the government, public health agencies, and other institutions to determine
population trends and needs. The reporting agencies and services include the Depart-
ment of Health and Human Services, Centers for Disease Control and Prevention, the
National Center for Health Statistics, and the Public Health Service. The mortality rate,
also called the death rate, is the ratio of the number of deaths to total population in a
given location. The morbidity rate is the number of sick people or cases of disease in
relationship to a specific population. The Mortality and Morbidity Weekly Report, a list of
illness and death rates for a variety of illnesses, is published every week by the Centers
for Disease Control (CDC) in Atlanta, Georgia. The CDC is always on the lookout for
outbreaks of disease in major cities and all the states. Therefore, the CDC needs to have
accurate input from physicians and health care officials of statistics relating to deaths
and illness.
The physician’s duty to report these events falls in the category of public duties—
that is, duties owed the public. These duties include reports of births, stillbirths, and
deaths; communicable illnesses or diseases; drug abuse; certain injuries, such as rape,
gunshot, and knife wounds; animal bites; and abuse of children, spouses, and older
adults. Additional information includes data such as marriages, divorces, and induced
termination of pregnancies.
Office personnel such as nurses, medical assistants, and school nurses may carry
out many of these reporting duties. The collection of this information should be taken
seriously. The data—or facts, figures, and statistics—represent information about the
individual patient’s life. In addition, some of the data are of a highly sensitive nature,
such as the facts concerning rape, abuse, and death.
CHAPTER 7 Public Duties of the Health Care Professional 155
1. Request information from the state registrar for specific requirements on completing certificates.
2. Type all documents when possible. If the record is completed manually, then print using black ink.
3. Make sure that all blank spaces are completed.
4. Verify all names for correct spelling.
5. Use full original signature, not rubber stamps.
6. File original certificates or reports with the appropriate registrar. Copies or reproductions are not
acceptable.
7. Avoid abbreviations.
8. Do not alter the certificate or make erasures.
9. Keep a copy in the patient’s file.
Table 7.1 Recommendations for Completing Legal Records and Certificates
Med Tip
Some states impose a criminal penalty if a birth or death certificate is not handled correctly.
Med Tip
Even though office staff may actually perform the paperwork requirements of the law, the
ultimate responsibility for reporting health statistics and abuse remains with the physician.
Recommendations for completing legal records such as birth and death certificates
are summarized in Table 7.1.
Births
Physicians, primarily those assisting at births, issue the certificate of live birth that will
be maintained during a person’s life as proof of age. A valid birth certificate is required
to receive many government documents such as a Social Security card, passport, driver’s
license, and voter registration.
A physician must sign the certificate of live birth. For a hospital birth, the certificate
is filed by the hospital at the county clerk’s office in the state in which the birth took
place. If the birth occurs at home, the midwife or person in attendance at the birth can
file the birth certificate at the county Public Health Department. While the time frame
to submit a birth certificate varies somewhat from state to state, in most cases it must
be done within the first week of the baby’s life. Some states impose a criminal penalty
if the birth and death certificates are not properly completed and handled. If the birth
has not been registered within a year, then the physician, midwife, or any other person
in attendance at the birth may have to go to court to provide proof of the birth.
Physicians and others who attend a birth, such as midwives, are required to report
certain diseases in newborns. Ophthalmia neonatorum is a serious eye condition present
at birth that causes inflammation, swelling, redness, and an unnatural discharge in an
infant’s eyes. If untreated, it may result in blindness. Evidence of this disease must be
reported within 12 hours after birth. A test for the condition of phenylketonuria (PKU) is
another test required by state health departments on newborns. PKU can be treated with
dietary restrictions. In addition, some states also require testing for sickle cell anemia.
Deaths
Physicians sign a certificate indicating the cause of a natural death. The Department of
Public Health in each state provides the specific requirement for that state. For example, in
the case of a stillbirth before the twentieth week of gestation, the physician must file both a
156 PART 2 The Health Care Environment
birth and death certificate in some states. In other states, neither is required if the fetus has
not reached the twentieth week of gestation. And in some states only a death certificate is
required for a stillbirth after the twentieth week. In the case of a live birth with a subsequent
death of the infant, both a birth certificate and a death certificate are necessary in all states.
The physician who had been attending the deceased person usually signs the death
certificate, stating the time and cause of death. The physician must include the following
information on the certificate:
• The date and time of death
• The cause of death: diseases, injuries, or complications
• How long the deceased person was treated for the disease or injury before dying
• The presence or absence of pregnancy (for female decedent)
• If an autopsy took place
In most states, a death certificate must be signed within 24 to 72 hours after the
patient’s death. After the physician has signed the certificate, it is given to the mortician,
who files it with the state or county clerk’s office.
Med Tip
Because funeral arrangements and burial cannot take place until the death certificate is
signed, it is important that the physician sign as soon as possible.
• No physician present at the time of death
• A violent death, including homicide, suicide, or accident
• Death as a result of a criminal action
• An unlawful death such as assisted suicide
• Death from an undetermined cause (unexpected or unexplained)
• Death resulting from chemical, electrical, or radiation injury
• Death caused by criminal abortion, including self-induced
• Death occurring less than 24 hours after hospital admission
• No physician attending the patient within 36 hours preceding death
• Death occurring outside of a hospital or licensed health care facility
• Suspicious death, such as from a fall
• Death of a person whose body is not claimed by friends or relatives
• Death of a person whose identity is unknown
• Death of a child under the age of two years if the death is from an unknown cause or if it appears
the death is from sudden infant death syndrome (SIDS)
• Death of a person in jail or prison
Table 7.2 Cases Needing a Coroner’s Signature
The death certificate provides proof that a death has occurred. It is often required
to confirm information concerning veteran’s benefits, Internal Revenue Service (IRS)
information, insurance benefits, and other financial information when settling an estate.
If a funeral home provides the burial, they will often obtain copies of the death certifi-
cate for the family to submit to agencies, such as the IRS. The death certificate must be
signed as soon as possible after a person’s death. The time and date of the death are
important facts and must be accurate.
In some deaths, a coroner or health official must sign a certificate. See Table 7.2 for
a listing of cases that need a coroner’s signature.
A coroner is the public health officer who holds an investigation, or inquest, if the
death is from an unknown or violent cause. The coroner or medical examiner completes
the death certificate if the deceased has not been under the care of a physician. In some
CHAPTER 7 Public Duties of the Health Care Professional 157
states, the coroner will also investigate an accidental death, such as one resulting from
a fall. A medical examiner is a physician, usually a pathologist, who can investigate an
unexplained death and perform autopsies. An autopsy, which is a postmortem or after-
death examination of the organs and tissues of the body, may have to be performed to
determine the cause of death.
Unless the death results from suspicious causes, such as a homicide, an autopsy
cannot be performed on a body without the consent of the surviving person who has
the “first right” to the body. This person is usually a family member who is responsible
for burying the deceased person.
Communicable Diseases
Physicians must report all diseases that can be transmitted from one person to another
and are considered a general threat to the public. The report can be made to the public
health authorities by phone or mail. The communicable disease report should include
the following:
• Name, address, age, and occupation of the patient
• Name of the disease or suspected disease
• Date of onset of the disease
• Name of the person issuing the report
The list of reportable diseases differs from state to state, but all states require reports
of tuberculosis, rubeola, rubella, tetanus, diphtheria, cholera, poliomyelitis, acquired
immunodeficiency syndrome (AIDS), meningococcal meningitis, and rheumatic fever.
In addition, some diseases, such as influenza, need to be reported if there is a high
incidence within a certain population. Sexually transmitted diseases (STDs) or venereal
diseases, such as syphilis, gonorrhea, and genital warts, must also be reported to protect
the public. Employees in food service, day care, and health care occupations are more
carefully monitored for contagious diseases by public health departments.
A listing of childhood vaccines and toxoids that are required by law (the National
Childhood Vaccine Injury Act of 1986) is found in Table 7.3.
Many pediatricians also recommend that every child receive H. influenzae type b vac-
cine (HiB), hepatitis A vaccine, varicella (chicken pox) vaccine, and pneumococcal (pneu-
monia) vaccine (PCV7). In most states, newborn infants also receive erythromycin applied
to both eyes and a vitamin K injection to prevent hemorrhagic diseases of the newborn.
The National Childhood Vaccine Injury Act, passed by Congress in 1986, requires a
physician or health care administrator to report all vaccine administrations and adverse
reactions to vaccines and toxoids. In addition, the name and address of the person
administering the vaccine and the date of administration should be documented in the
patient’s record.
• Diphtheria, pertussis (whooping cough), tetanus toxoid (DPT)
• Measles, mumps, rubella (MMR)
• Poliovirus vaccine, live
• Poliovirus vaccine, inactivated
• Hepatitis B vaccine (HBV)
• H. influenzae type b (HiB)
Table 7.3 Required Children’s Vaccines
Med Tip
The physician must report information directly relating to the vaccine and toxoid, such as
the manufacturer and lot number.
158 PART 2 The Health Care Environment
Duty to Report AIDS, HIV, and ARC Cases
All states have statutes or regulations that require health care providers to report cases
of AIDS to the local or state department of health. Most states also require that human
immunodeficiency virus (HIV) and AIDS-related complex (ARC) cases be reported as
well. Who should report the cases varies. In some states, it is the duty of the attending
physician or laboratory that performs the test. Other states may require hospitals, clin-
ics, blood banks, and other facilities to report positive cases.
All states have voluntary HIV testing for all health care workers. However, report-
ing a positive HIV test result is not yet required throughout the country. Three states,
Alabama, Florida, and Minnesota, have a reporting requirement in their states of posi-
tive HIV test results to a state agency.
Many states have confidentiality statutes that allow notification of an HIV patient’s
spouse, needle-sharing partner, or other contact person who is at risk of the infection
(California Health and Safety Code 121015). A physician who wishes to notify a contact
person under one of these laws should always discuss such plans with the patient first.
The physician may wish to remind the patient of the moral obligation to others. Patients
should always be informed that there are some statutes that impose criminal liability on
someone who is an HIV carrier and knowingly engages in activities that could spread
the virus to others (Fla. Stat. §Ann. 384.24.).
Disclosure to Patients of Health Workers’ HIV Status
Many people believe that health care workers have a moral obligation to disclose their
own HIV-positive status to their patients. However, health care providers have argued
that it is an unnecessary invasion of their privacy as there is little evidence that HIV is
transmitted from health care providers to patients. The most notorious case occurred
when a Florida dentist, who later died of AIDS, allegedly infected five of his patients. At
least one patient later died of AIDS. The accused dentist practiced invasive procedures
such as tooth extractions and fillings without practicing universal safety precautions
such as wearing gloves and a mask. The allegations in this case have never been proven.
In 1985 a law went into effect that mandated the testing of all blood and tissue donors
to protect any potential surgery and hemophiliac patients from the transmission of HIV. In
addition, the requirement to use standard precautions was implemented. There are many
people who believe that health care workers who practice any type of invasive procedures
or techniques, such as injections and surgery, should be required to take an HIV test. The
alternative is that health care workers should be tested if they have a needlestick incident.
This HIV testing is currently done in hospitals whenever a needlestick incident occurs.
In spite of the lack of statistics to demonstrate that health care workers can infect
their patients, patients still have a desire to know if they are at risk of being infected
with HIV/AIDS. Because AIDS is a fatal disease, many patients believe they should be
told if their physician is HIV-positive.
Med Tip
It is the duty of the physician to report communicable diseases, such as HIV, AIDS, and
ARC. However, patients often feel more comfortable sharing personal information with
nurses, physician assistants, medical assistants, or laboratory technicians. These health
care professionals have a duty to report this information to the physician.
Child Abuse
The first child protective agency in the world was established in 1874 when a little
10-year-old girl, Mary Ellen McCormack, explained to the court how her mother beat
and abused her. The New York Society for the Prevention of Cruelty to Children began
as a result of her story. She became known as “the child who put a face on abuse.”
CHAPTER 7 Public Duties of the Health Care Professional 159
The Child Abuse Prevention and Treatment Act of 1974 requires reporting of all
child abuse cases. All states have statutes that define child abuse and require that all
abuse must be reported. To begin to investigate questions of neglect and child abuse, the
state must have probable cause, which is a reasonable belief that something improper
has happened. Many states list personnel who are required by law to make an imme-
diate report of any suspected child abuse. These personnel include teachers; health
professionals such as physicians, emergency room staff, physician assistants, nurses,
and medical assistants; law-enforcement personnel; daycare personnel; and social ser-
vice workers. Neglect, or the failure to provide for a child’s basic care, such as food,
shelter, and medical care, are also considered to be abuse. Questionable injuries of
children, including bruises, fractured bones, and burns, must be reported to local law-
enforcement agencies.
The term battered child syndrome is sometimes used by health care professionals to
describe a series of injuries, including fractures, bruises, and burns, done to children
by parents or caregivers. This is not a legal term but, rather, a description of injuries
(Figure 7.1). Signs of neglect such as malnutrition, poor growth, and lack of hygiene
are reportable in some states. In a Minnesota case, the court ruled that the Minnesota
Board of Psychology acted correctly when it revoked the license of a psychologist
who failed to report the sexual abuse of a child (In re Schroeder, 415 N.W.2d 436, Minn.
Ct. App. 1987).
Physicians have been held liable if they do not report cases of child abuse. For
example, in Landeros v. Flood, the state Supreme Court ruled that the physician should
not have returned a battered child to the parents after he treated the child for intention-
ally inflicted injuries. The court held that “battered child syndrome” was a legitimate
medical diagnosis and the physician should have suspected that the parents would
inflict further injury on the child (Landeros v. Flood, 551 P.2d 389, Cal. 1976).
Any person who suspects that child abuse is taking place can report the abuse to
local authorities without fear of liability. This includes teachers, nurses, and other health
care personnel. It can sometimes be difficult to determine if a child’s injury is acciden-
tal or intentional. The persons reporting these cases, acting in the best interests of the
child, are protected by law from being sued by parents and others. In the case of Satler
v. Larsen, a pediatrician reported a case of possible child abuse concerning a four-month-
old comatose infant to the Bureau of Child Welfare. There was not enough evidence to
demonstrate that the parents were at fault, and they subsequently sued the physician
for defamation. The defamation lawsuit was dismissed, because the physician reported
the suspected abuse in good faith (Satler v. Larsen, 520 N.Y.S.2d 378, App. Div. 1987).
FIGURE 7.1 A Young Child Explains Her Injuries
to a Physician
160 PART 2 The Health Care Environment
Most state statutes require that an oral report of suspected abuse be made immedi-
ately, followed by a written report. The written report should include:
• Name and address of the child as well as persons(s) responsible for the care of the child
• Child’s age
• Description of the type and extent of the child’s injuries
• Identity of the abuser, if known
• Photographs, soiled clothing, or any other evidence that abuse has taken place
Med Tip
The person reporting a suspected case of child abuse is protected from civil and criminal
liability unless that person is the abuser. However, failure to report a suspected case of
child abuse may result in a charge of misdemeanor.
Med Tip
Parents may have to be asked to leave the exam room while their child is questioned about
suspicious bruises and injuries. See Child Abuse and Treatment Act in Chapter 12.
Parental neglect occurs when a parent or parents have a religious belief that does
not allow medical treatment for their children. States refrain, as much as possible, from
interfering with parental rights because the parents are the decision makers for their
children. However, the state may have to step in when there is intentional neglect such
as when a child is not receiving the medical care that could save his or her life. For
example, members of some religious denominations do not allow blood transfusions. If
a child suffers from leukemia, a type of cancer of the blood, he or she may need frequent
blood transfusions in order to live. A full court hearing may be required to temporarily
remove the child from the parent’s custody in order to obtain treatment. There have
been cases in which parents were charged with murder, manslaughter, or negligent
homicide when a child died because of apparent parental neglect.
Elder Abuse
Elder abuse is defined in the amendment to the Older Americans Act (1987). It includes
physical abuse, neglect, exploitation, and abandonment of adults 60 years and older and
is reportable in most states. The reporting agency varies by state but generally includes
social service agencies, welfare departments, and nursing home personnel. As in the
case of child abuse, the person reporting the abuse is, in most states, protected from
civil and criminal liability.
Residents of nursing home facilities must be protected from abusive health care
workers. To do so, some states have made “resident abuse” a crime. In the case of Brinson
v. Axelrod, a nurse’s aide was prosecuted for resident abuse for causing injuries to the
hands and face of an elderly resident (Brinson v. Axelrod, 499 N.Y.S.2d 24, App. Div. 1986).
Another medical employee in a New York case was found guilty of resident abuse when
she “held the patient’s chin and poured the medication down her throat” after the patient
had refused medication (In re Axelrod, 560 N.Y.S.2d 573, App. Div. 1990).
The elderly are also protected by the Older Americans Act from financial abuse or
exploitation. This is considered a crime in many states.
Spousal Abuse
One of the most difficult situations that health care providers confront is when they
suspect that a patient suffers from spousal abuse. Laws governing the reporting of
spousal abuse vary from state to state. The local police may have to become involved
CHAPTER 7 Public Duties of the Health Care Professional 161
when spousal abuse is suspected, and in some cases a court will issue a restraining
or protective order prohibiting the abuser from coming into contact with the victim.
Questions that are frequently asked of a suspected abused spouse include:
• Are you or your children afraid of your spouse?
• Does your partner threaten, grab, shove, or hit you?
• Does your partner prevent you from spending time with your family or friends?
• Do you stay with your partner because you are afraid of what he or she would do
if you broke up?
• Has your partner ever abandoned you in a dangerous place?
Abused spouses are warned that in most relationships the cycle of abuse happens
many times. The abuse does not stop.
Med Tip
All medical offices and hospital emergency rooms should have access to a 24-hour abuse
hotline, such as a women’s support services hotline.
• Repeated injuries
• Bruises such as blackened eyes and unexplained swelling
• Unexplained fractures
• Bite marks
• Unusual marks, such as those occurring from a cigarette burn
• Bruising, swelling, or pain in the genital area
• Signs of inadequate nutrition, such as sunken eyes and weight loss
• Sexually transmitted disease and genital abrasions and infections
• Makeup used to hide bruises
• Sunglasses worn inside a building or hospital to hide blackened eyes
Table 7.4 Signs of Abuse
Signs of Abuse
Health care workers, social workers, daycare personnel, and nursing home staff
should all be on the lookout for victims of abuse. However, physical signs in chil-
dren, spouses, the elderly, and the mentally incompetent vary. These signs of abuse
are found in Table 7.4.
Health care workers must do everything possible to gain the victim’s confidence.
However, it is not possible to assure the victim that all information will be held in con-
fidence, as abuse cases are reportable by law. This should be clearly explained to the
victim at the time of the initial visit.
It is difficult to discuss the abuse with the victim when the suspected abuser is pres-
ent. Always attempt to speak to the victim in private. If possible, have another health
care professional present during the interview to act as a witness.
Med Tip
Those persons who are unable to protect themselves, such as children and the elderly,
must be protected by health care workers and caregivers who become aware of abusive
situations. However, take care not to conclude too quickly that abuse has occurred when
one or more of these signs are present. For example, some people, especially children,
are simply prone to accidents.
162 PART 2 The Health Care Environment
Gathering Evidence in Cases of Abuse
Gathering evidence from abuse victims usually takes place in a hospital or emergency
room setting. However, a physician may see an abused patient in the office. Precise
documentation of all injuries, bruises, and suspicious fluid deposits in the genital areas
of children is critical. The court may subpoena these records at a later date. The physi-
cian may also be asked to testify in court and offer observations.
Evidence in abuse cases includes the following:
• Photo of bruises and other signs of abuse
• Female child’s urine specimen (containing sperm) or laboratory report indicating
the presence of sperm in the urine
• Body fluids, such as semen, vomitus, or gastric contents such as found on clothing
• Various samples, such as blood, semen, and vaginal or rectal smears
• Foreign objects such as bullets, hair, and nail clippings
Evidence should be handled as little as possible, and by only one employee, to pre-
vent damaging it. All evidence in abuse cases should be clearly labeled and protected
with sealed plastic bags or covers.
Chain of Custody for Evidence
It is important to maintain a clear chain of custody for evidence to verify that the speci-
men has been handled correctly. All evidence must be clearly labeled with the name of
the patient, date, and time when the specimen was obtained, and all information regard-
ing evidence should be carefully documented in the patient’s medical record. In addi-
tion to the time and date, the medical record should include complete documentation
of the patient’s condition as well as the treatment that was provided. All photographs
and X-rays should be carefully labeled with the patient’s name, patient registration
number, time, and date. Items such as clothing, including underwear, must be retained
as evidence and not handled excessively or washed. All evidence should be kept in a
locked storage area until it is required.
Care must be taken when turning evidence over to a third party. Always request
identification and authorization of the person as well as a receipt, which can then be
placed into the medical record.
Other Reportable Conditions
Many states require physicians to file a report of certain medical conditions in order to
maintain accurate public health statistics. These conditions include cancer, epilepsy, and
congenital disorders such as PKU of the newborn that can cause mental impairment if
untreated. Because the testing for many of these conditions occurs in the hospital, the
reporting responsibility rests on the hospital.
Gunshot Wounds
Gunshot wound laws require reports when injuries are inflicted by lethal weapons or
by unlawful acts. In addition, every case of a bullet wound, powder burn, or any other
injury arising from the discharge of a gun or firearm must be reported to the police
authorities of the city or town where the person reporting is located. The report must
be made by the physician treating the patient or an administrative person in charge of
a hospital, sanitarium, or other institution.
Forensic Medicine
Forensic medicine is that branch of medicine concerned with the law, especially
criminal law, such as in gunshot cases resulting in death. A forensic pathologist is
CHAPTER 7 Public Duties of the Health Care Professional 163
a physician who specializes in the examination of bodies when there are circum-
stances indicating that the death was unnatural, such as in suicide, accident, or
homicide. Their examination usually includes an assessment of the time of death
(from data such as the temperature of the corpse and decomposition) and a deter-
mination of the cause of death (based on a study of the injuries). They also examine
blood, hair, and skin from the victim with those on any weapons, found in automo-
biles, or on the clothing of suspects.
Forensic pathologists also examine victims of sexual and child abuse. In addition,
they consult in cases of attempted poisoning and drug abuse. They are called upon to
advise on blood grouping in cases of disputed paternity.
Controlled Substances Act
and Regulations
The Food and Drug Administration (FDA), an agency within the Department of Health
and Human Services, ultimately enforces drug (prescription and over-the-counter) sales
and distribution. The FDA came into existence with the passage of the Food, Drug, and
Cosmetic Act of 1938, which sought to ensure the safety of those items sold within the
United States.
Drugs that have a potential for addiction, an acquired physical or psychological
dependence on a drug, habituation, the development of an emotional dependence on
a drug because of repeated use, or abuse, misuse, excessive use, or improper use, are
also regulated. The Drug Enforcement Administration (DEA) of the Department of
Justice controls these drugs by enforcing the Comprehensive Drug Abuse Prevention
and Control Act of 1970, more commonly known as the Controlled Substances Act of
1970. This act regulates the manufacture and distribution of the drugs that can cause
dependence and places controlled drugs into five categories that are called schedules: I,
II, III, IV, and V. The Bureau of Narcotics and Dangerous Drugs (BNDD) is the agency
of the federal government authorized to enforce drug control.
Physicians who administer controlled substances, also called narcotics, must regis-
ter with the DEA in Washington, DC, and the registration must be renewed every three
years. A DEA registration number is assigned to each physician. A physician who leaves
the practice of medicine must return the registration form and unused narcotic order
forms to the nearest DEA office.
An accurate count of all narcotics must be kept in a record such as a narcotics log,
and all narcotics records must be kept for two years. The date and the name of the
person to whom the drug was administered, along with the signature of the person
administering the drug, are recorded. In some states, physicians who prescribe narcotic
drugs but do not administer them, such as dentists and psychiatrists, are also required
to maintain narcotics logs and inventory records.
Most states limit the administration of narcotics to physicians and nurses. States
may be more restrictive, but not less, than the federal government when regulating the
administration of controlled substances. For example, a state may require physicians to
keep controlled substances records for a longer period of time than the federal regula-
tions require.
All narcotics must be kept under lock and key. According to the FDA, because
of environmental concerns controlled (narcotic) drugs should only be “wasted” or
destroyed down a toilet or drain, if there are specific instructions on the packaging to
do this. Two people should be present when controlled substances are destroyed. Non-
narcotic drugs should be removed from their original containers and properly disposed
of with other medical waste.
164 PART 2 The Health Care Environment
Level Description Comment
Schedule I Highest potential for addiction and abuse. Not accepted for
medical use.
Cannot be prescribed.
May be used for research purposes. Example: heroin or
LSD.
Schedule II High potential for addiction and abuse. Accepted for
medical use in the United States. Example: codeine,
cocaine, morphine, opium, and secobarbital.
A DEA-licensed physician must complete the required
triplicate prescription forms entirely in his or her own
handwriting. The prescription must be filled within seven
days, and it may not be refilled. In an emergency, the
physician may order a limited amount of the drug by
telephone. These drugs must be stored under lock and key
if they are kept on the office premises. The law requires that
the dispensing record of these drugs be kept on file for two
years.
Schedule III Moderate-to-low potential for addiction and abuse. Example:
butabarbital, anabolic steroids, and APC with codeine.
A DEA number is not required to prescribe these drugs,
but the physician must handwrite the order. Five refills
are allowed during a six-month period, and this must be
indicated on the prescription form. Only a physician may
telephone the pharmacist for these drugs.
Schedule IV Lower potential for addiction and abuse than Schedule
III drugs. Example: chloral hydrate, phenobarbital, and
diazepam.
The prescription must be signed by the physician. Five
refills are allowed over a six-month period.
Schedule V Low potential for addiction and abuse. Example: cough
medications containing codeine, lomotil.
Inventory records must be maintained on these drugs.
Table 7.5 Schedule for Controlled Substances
The controlled drugs are classified into five schedules based on the potential for
abuse, which are summarized in Table 7.5.
A violation of the Controlled Substances Act is a criminal offense that can result in
a fine, loss of license to practice medicine, and a jail sentence. Medical office personnel
can assist the physician in maintaining compliance with the law by:
• Alerting the physician to license renewal dates.
• Maintaining accurate inventory records.
• Keeping all controlled substances in a secure cabinet.
• Keeping prescription blanks and pads locked in a secure cabinet, office, or
physician’s bag.
Prescriptions for Controlled Drugs
Only those persons with a DEA registration number may issue a prescription for narcot-
ics. This registration number must appear on all prescriptions for controlled substances.
Schedule I drugs require approval by the FDA and the DEA for use in research. The
sale of these drugs is forbidden. Schedule II drugs require a special DEA order form
that is completed in triplicate. One copy is kept in the physician’s records, one copy is
sent to the narcotics supplier, and one copy is sent to the DEA. Because there is a high
potential for abuse and addiction with these drugs, the prescription cannot be refilled.
Physicians must take a written inventory of their drug supply every two years. All
narcotics-dispensing records must be kept for a two-year period. It requires careful com-
munication between the physician and patient to ensure that the patient is not seeking
narcotics prescriptions from multiple physicians. In some instances, pharmacies that
maintain careful records have been able to pinpoint abuse.
The compounding, dispensing, and retailing of drugs is controlled by the Controlled
Substances Act. Compounding is the combination and mixing of drugs and chemicals. For
example, a pharmacist compounds a drug by filling a physician’s prescription that involves
preparing and mixing medications. In general, most medications are compounded by the
CHAPTER 7 Public Duties of the Health Care Professional 165
pharmaceutical companies. Hospital-based pharmacists may have to compound certain
medications, as for example, for children’s dosages. Dispensing is defined as distributing,
delivering, disposing, or giving away a drug, medicine, prescription, or chemical. Most
state statutes authorize professionals, such as nurses, nurse practitioners, or physician
assistants, to dispense drugs. For example, hospital-based nurses may dispense to their
patients medications that have been prepared by a pharmacist, if they have a physician’s
order. However, nurses may not enter a hospital pharmacy and remove drugs/medica-
tions from the hospital’s floor stock in order to carry out a physician’s orders. Retailing
is the legal act of selling or trading a drug, medicine, prescription, or chemical.
The term “drug,” in most state statutes, is similar to the definition found in the Federal
Food, Drug, and Cosmetic Act. This states that a drug is intended to affect the structure or
function of the body of man or other animals. When applying this definition, the courts
have decided that aspirin, laxatives, vitamin and mineral capsules, and whole human
blood can be considered drugs under certain circumstances. Therefore, when handling
these drugs, even aspirin, nurses and other professionals must be aware that they cannot
be compounded or retailed. And a nurse can only dispense these drugs with a physician’s
order. This means that if a hospitalized or nursing home patient asks a nurse for an aspirin
it cannot be dispensed without a prescription from the physician (Figure 7.2).
Substance Abuse
Abuse of prescription drugs is reportable immediately, according to the law. Such abuse
can be difficult to determine, as the abuser may seek prescriptions for the same drug
from different physicians. A physician will want to see a patient before prescribing
medication. A violation of controlled substances laws is a criminal offense. Prescription
pads and blanks should always be kept locked up when not in use. Physicians will usu-
ally keep a pad in their pocket during working hours. Pads are never left out on exam
room counters or desks.
Med Tip
All physicians and health care workers should be familiar with the laws relating to controlled
substances. Violation of the laws can result in fines, imprisonment, and a loss of license
to practice medicine.
FIGURE 7.2 Explaining Drug Safety
to a Patient
© Cultura RM/Alamy
166 PART 2 The Health Care Environment
The Opioid Crisis
Opioid abuse is a relatively new problem that quietly entered the health care scene but
has now become a full-blown crisis. When used correctly, in small dosages, opioids
can be useful as mild drugs to help control pain. Opioids are synthetic products that
are not derived from opium but have the same opiumlike effect, acting on the brain
to decrease the sensation of pain. However, these drugs can also cause the breathing
reflex and heartbeat to shut down in some people. It is important to remember that
opioids are pain killers that can be addictive and do require a prescription from a doctor.
Unfortunately, a widespread black market has developed in which people can obtain
opioids without a prescription.
Med Tip
Addiction is an acquired dependence on drugs of abuse, such as narcotics, or alcohol.
Addictions can affect the brain, cause dangerous behavior, and sometimes lead to over-
dose and death.
According to recent statistics, the drug overdose problem in America is a leading
cause of death for Americans who are under the age of 50. The drug overdoses are espe-
cially severe when they occur along with the use of alcohol. Some studies suggest that
up to one-third of the users of opioids for chronic pain will misuse them. In addition,
10 percent may even become addicted. According to recent literature, there is an added
risk of addiction if the person has received the opioids illegally (without prescription)
because they may be able to buy more pills than the physician would have ordered.
Opioid drugs include:
• Fentanyl
• Hydromorphone
• Oxycodone
• Sufentanil
• Heroin
• Methadone
• Paregoric
• Pramadol
Some of the physical signs that a person is abusing opioids include:
• Confusion
• Physical agitation
• Unexplained or sudden drowsiness
• Withdrawal from others
• Unexpected vomiting and/or diarrhea
• Poor decision making
• Lying or making excuses for mood changes
• Dramatic mood changes
• Slow or shallow breathing
• Sudden dramatic behavior changes
• Poor coordination
• Unexpected depression
• Slurred speech
CHAPTER 7 Public Duties of the Health Care Professional 167
It has been suggested that some factors may increase a person’s risk for opioid
addiction—for example, if a person:
• Has difficulty avoiding unsafe or dangerous practices
• Has a personal or family history of substance abuse
• Is unemployed or living below the poverty level
• Has a history of family or work problems
• Is a young teenager, up to 20 years of age
• Is living in poor or stressful circumstances
• Is in contact with a high-risk environment or groups of people using drugs
When using any medications, it is advisable to do the following:
• Tell your physician and/or health care provider about all the medications you are
taking.
• Always order you medications from your doctor through the same pharmacy.
• Always read all instructions and warnings that come with your prescription before
taking them.
• Report any abnormal medication side effects to your doctor.
• Never share your medications with family members or friends.
Characteristics of—and differences between—opium and opioids include these:
• Opium is a narcotic substance derived from a capsule in the poppy plant. It con-
tains several important alkaloids such as morphine, codeine, and heroin.
• Opioids are synthetic, manufactured drugs (in contrast to opium, which is derived
from a plant).
• Opioids, used as pain relievers, have helped many patients with their recovery
after surgery. They have also been prescribed for patients who suffer chronic
pain that is resistant to other kinds of pain relievers. Long-term use of opioids
for chronic pain must be carefully monitored by the physician to avoid devel-
opment of addiction.
• Given the current increasing numbers of opioid users, it is important to know
how opioids act in the body and how they can be used safely. Opioids have the
ability to affect a person’s thinking as well as judgment. They are considered
to be addictive, as well as dangerous, drugs if not used correctly. As they travel
with the blood throughout our bodies, they release signals to the brain. Lower
doses of this medicine can make the patient sleepy; unfortunately, higher doses
may severely affect a patient with a slowing down of their heart rate and breath-
ing, which can even lead to death. Because drugs sometimes interact with or
boost another drug’s effects, it is important for the patient to discuss with the
physician all the medications he or she is using.
• Opioids are sometimes referred to as the “feel good” pills. This is very misleading
because they can easily become addictive with the harmful effects already dis-
cussed. As with any medication, the user of an opioid medication must carefully
follow his or her physician’s instructions.
Med Tip
Opioid use should not be stopped suddenly. A doctor’s advice regarding stopping opioid
use must always be sought and followed.
168 PART 2 The Health Care Environment
Opioids are not considered to be safe if a person has:
• History of severe depression
• Family history of drug abuse
• Anxiety or depression
• Prior drug or alcohol rehabilitation
• Sleep apnea
• Fibromyalgia
A patient should discuss these risk factors with a physician before using an opioid
medication.
Symptoms of opioid addiction include:
• Nausea or vomiting
• Slurred speech
• Anxiety attacks
• Agitation
• Dramatic mood changes
• Euphoria or exaggerated feelings of elation
Symptoms of an opioid overdose include:
• Shallow or very slow breathing rate
• Dramatic mood changes
• No pulse or slow, erratic pulse
• Constricted or narrowing of pupils
• Unresponsiveness
The CDC provides guidance to physicians for safe prescribing of opioid medica-
tions. The CDC’s recommendations to physicians include:
• Prescribe only the lowest effective dose, for the shortest period of time, whenever
treating acute pain.
• Avoid or even delay prescribing opioids for chronic pain.
• Work with your patient to create realistic treatment goals.
Protection for the Employee
and the Environment
Employee Assistance Programs
An Employee Assistance Program (EAP) may be defined as a management-financed
and confidential counseling and referral service. It is designed to help employees and/
or their family members assess a problem, such as alcoholism or marital strife, develop
a plan to resolve personal problems, and determine the appropriate resources to assist
in the resolution process. An EAP is a service provided by many institutions, such as
hospitals and corporations, for all of their employees and employees’ family members.
The EAP is geared toward helping employees maintain their job performance while
attempting to resolve the difficulty. It is generally administered and staffed by experi-
enced professionals who are trained to understand personal problems and their relation
to job performance.
CHAPTER 7 Public Duties of the Health Care Professional 169
It is estimated that personal problems cost the U.S. economy $70 billion annually.
Nearly half of this cost, $30.1 billion, is related to alcohol and/or drug abuse and the result-
ing loss of productivity. The Department of Health and Human Services estimates that:
• Four percent of the employed population uses some form of illegal drugs daily.
• Five to 10 percent of the workforce suffer from alcoholism.
• Substance-abusing employees are absent from work 16 times more often than the
average employee, have four times more home accidents, use a third more sickness
benefits, and have five times more compensation claims.
A “troubled” employee may need additional support from his or her supervisor. In
addition, productivity may be affected for both employee and supervisor. The types of
problems that an EAP can help with are substance abuse (alcoholism and drug abuse),
stress-related (depression and anxiety) issues, family and marital problems, psychologi-
cal troubles, and job-related (interpersonal and burnout) stress.
Med Tip
It is important to remember that only trained, objective professionals should counsel
employees regarding their personal problems.
Without an effective way to deal with employee problems, a health care supervisor
may confront the employee, accept continued excuses, provide inadequate counseling,
reassign tasks, give verbal warnings, demote or transfer the employee, give a final
warning, and eventually resort to termination of the employee. By using an effective
EAP, the supervisor:
• Continues to supervise the employee’s job performance.
• Receives feedback of the first appointment from the EAP (subsequent appointment
counseling sessions are not reported back to the supervisor because of confidential-
ity issues).
• Notes improved performance or states the consequences of poor performance.
• Consults the EAP counselor for suggestions of how to work with a difficult
employee.
• Does not diagnose.
• Follows disciplinary documentation procedures.
• Is free to focus on job performance.
• Continues to talk with the employee, but does not provide counseling.
See Table 7.6 for warning signs that an employee may need an EAP.
• Attitude changes
• Decrease in output
• Inability to carry his/her load
• Persistent lateness in completing tasks
• Lowered quality of work
• Increase in accidents or near accidents
• Repeated safety violations
• Excessive tardiness
• Repeated early departures
• Excessive absenteeism
• Prolonged lunch hours or breaks
• Mysterious absences from workstation
• Decline in personal appearance
• Mood changes
• Conflicts with coworkers
• Increase in personal phone calls
• Increased use of medical services
• Calls from creditors
• Garnishments of wages
Table 7.6 Warning Signs That an Employee May Need an EAP
170 PART 2 The Health Care Environment
Confidentiality is essential for the success of any EAP.
Employees who have confidence in the medical staff may
discuss personal problems with physicians and nurses. Many
of these problems are those that an EAP staff is especially
trained to handle, such as alcoholism, drug abuse, and mari-
tal problems. If it is necessary for a medical unit, such as in a
hospital setting, to receive feedback on the employee condi-
tion, then the employee must sign a release allowing the EAP
counselor to communicate with the medical unit.
While it is preferable that employees leave their personal
problems outside of the workplace, this is often difficult to do.
All health care workers must have empathy for each other,
while still respecting an individual’s privacy (Figure 7.3).
Medical Waste
Hospitals, dental practices, veterinary clinics, laboratories,
nursing homes, medical offices, and other health care facili-
ties generate 3.2 million tons of hazardous medical waste each
year. Much of this waste is dangerous, especially when it is
potentially infectious or radioactive. There are four major types
of medical waste: solid, chemical, radioactive, and infectious.
Solid waste is generated in every area of a facility, including administration, caf-
eterias, patient rooms, and medical offices. It includes trash such as used paper goods,
bottles, cardboard, and cans. Solid waste is not considered hazardous, but it can pollute
the environment. Mandatory recycling programs have assisted in reducing some of the
solid waste in the United States.
Chemical waste includes germicides, cleaning solvents, and pharmaceuticals. This
waste can create a hazardous situation—a fire or explosion—for the institution or com-
munity. It can also cause harm if ingested, inhaled, or absorbed through the skin or
mucous membranes.
New guidelines from the FDA advise that non-narcotic drugs should not be flushed
down the toilet unless information on the drug label specifically instructs one to do this.
Ideally, they should be taken out of their original container and then mixed with sub-
stances such as coffee grounds to make it undesirable for anyone going through trash.
They can then be placed in a sealable bag or empty can and discarded.
Medical personnel have a duty to refrain from pouring toxic, flammable, or irritat-
ing chemicals down a drain. These chemicals should be placed in sturdy containers
or buckets and then removed by a licensed removal facility. Chemical wastes must be
documented on a safety data sheet (SDS), which also provides specific information on
handling and disposing of chemicals safely. Clinical laboratories, such as those used
by nursing and medical assistant students, must also document their use of chemicals.
Med Tip
Don’t flush medications down a toilet unless specifically instructed on the label to do so.
Drugs can kill bacteria in septic systems and pass largely untouched through sewage treat-
ment plants. After arriving in the landfills, drugs can trickle into groundwater.
FIGURE 7.3 Nurse Working in an Employee Assistance Program
© Ann Cutting/Alamy
Radioactive waste is any waste that contains or is contaminated with liquid or
solid radioactive material. This waste must be clearly labeled as radioactive and never
placed into an incinerator, down the drain, or in public areas. It should be removed by
a licensed removal facility.
CHAPTER 7 Public Duties of the Health Care Professional 171
Infectious waste is any waste material that has the potential to carry disease.
Between 10 and 15 percent of all medical waste is considered infectious. This waste
includes laboratory cultures as well as blood and blood products from blood banks,
operating rooms, emergency rooms, doctor and dentist offices, autopsy suites, clinical
training laboratories, and patient rooms. All needles and syringes must be placed in a
specially designed medical waste container. The three most dangerous types of infec-
tious pathogens (microorganisms) found in medical waste are hepatitis B virus (HBV),
hepatitis A virus (HAV), and HIV, which causes AIDS.
Infectious waste must be separated from other solid and chemical waste at the
point of origin, such as the medical office. It must be labeled, decontaminated onsite,
or removed by a licensed removal facility for decontamination.
Med Tip
Physicians and health care personnel have an ethical responsibility to protect the public
from harm caused by medical waste.
Chapter Review
Points to Ponder
1. Is it only the responsibility of the physician to report
child abuse cases? To whom, in your community,
should such a report be made?
2. How soon after death does a death certificate have
to be signed?
3. Does a woman have to report a stillbirth if it happens
at home?
4. Who signs a death certificate in a death resulting from
a fall from a window?
5. Does the physician have to report a case of genital
warts, or can this information be kept confidential?
6. Is “battered child syndrome” a legitimate medical
diagnosis?
7. Can a physician who, in good faith, reports
a suspected case of child abuse be sued by parents?
8. Can a “wasted” controlled substance be poured down
a sink?
9. Wouldn’t it be better for a person who has personal
problems to be counseled by a supervisor or employer
who knows him or her than to be counseled by a
stranger in EAP? Why or why not?
10. Should health care workers be tested to see if they
are HIV-positive?
7
Discussion Questions
1. What drugs fall under each of the five categories
(Schedules) of controlled substances?
2. To what does the term public duties refer?
3. What are the physician’s public duties?
4. What records must physicians keep if they dispense
or administer controlled substances?
5. What is the health care worker’s responsibility with
medical waste?
6. What are some conditions surrounding death that
require an autopsy?
172 PART 2 The Health Care Environment
Review Challenge
Short Answer Questions
1. What are the four categories of medical waste?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What are some of the events that a physician has a
duty to report?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. In a case of child abuse, what does the requirement
that the state must have probable cause mean?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. In your opinion, should patients be told if their
physician is HIV-positive?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What is a potential legal charge for a person who
fails to report child abuse?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. Violations of laws relating to controlled substances
can result in what type(s) of legal action?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What can medical office personnel do to assist
the physician in maintaining compliance with the
Controlled Substances Act?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. How should noncontrolled drugs be wasted?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. data
_____ 2. coroner
_____ 3. Schedule II drug
_____ 4. postmortem
_____ 5. Schedule I drug
_____ 6. addiction
_____ 7. inquest
_____ 8. DPT
_____ 9. STDs
_____ 10. public duty
COLUMN B
a. after death
b. statistics
c. physical dependence
d. diphtheria, pertussis, tetanus toxoid vaccine
e. public health official who investigates cause of death
f. report child abuse
g. LSD
h. codeine
i. sexually transmitted diseases
j. investigation to determine cause of death
CHAPTER 7 Public Duties of the Health Care Professional 173
Multiple Choice
Select the one best answer to the following statements.
1. Vital statistics from a person’s life include all of the
following except
a. pregnancies.
b. marriages and divorces.
c. animal bites.
d. sensitive information such as rape and abuse.
e. all of the above are considered to be vital
statistics.
2. A coroner does not have to sign a death certificate in
the case of
a. suicide.
b. death of elderly persons over the age of 90.
c. death occurring less than 24 hours after hospital
admission.
d. death from electrocution.
e. death of a prison inmate.
3. All of the following vaccines and toxoids are required
for children by law except
a. measles.
b. polio.
c. hepatitis.
d. a and b only.
e. a, b, and c are all required.
4. The Controlled Substances Act is also known as the
a. Drug Enforcement Administration Act.
b. Food and Drug Administration Act.
c. Comprehensive Drug Abuse Prevention and Con-
trol Act.
d. Bureau of Narcotics and Dangerous Drugs Act.
e. none of the above.
5. Schedule III drugs
a. can be refilled by an order over the phone from
the office assistant.
b. are allowed only five refills during a six-month
period.
c. require the DEA number of the physician on the
prescription.
d. require the order to be typed on the prescription
form.
e. all of the above.
6. An EAP program may help an employee cope with
a. marital problems.
b. alcoholism and drug abuse.
c. criminal charges.
d. a and b only.
e. a, b, and c.
7. Infectious waste
a. should be separated from chemical waste at the
site of origin.
b. can be safely removed by a licensed removal
facility.
c. consists of blood and blood products.
d. may contain HIV and hepatitis A and B viruses.
e. all of the above.
8. Phenobarbital is an example of a
a. Schedule I drug.
b. Schedule II drug.
c. Schedule III drug.
d. Schedule IV drug.
e. Schedule V drug.
9. The best method to “waste,” or destroy, a narcotic is
to
a. place it in a medical waste container that is
clearly marked.
b. return it to the pharmaceutical company.
c. flush it down a toilet only if instructed to do so on
the packaging.
d. do it without any witnesses.
e. none of the above.
10. Elder abuse is clearly defined in the
a. Food and Drug Administration Act.
b. Controlled Substances Act of 1970.
c. amendment to the Older Americans Act of 1987.
d. amendment to the Older Americans Act of 1974.
e. none of the above.
174 PART 2 The Health Care Environment
Put It Into Practice
Find a newspaper article that discusses an abusive situation (spousal, child, elder, or
drugs). Write your thoughts on what could have been done to prevent this from hap-
pening. Discuss the role of the health care team in reporting abuse cases.
Web Hunt
Search the website for the Centers for Disease Control and Prevention (www.cdc.gov).
Provide a definition for the morbidity and mortality tables using the CDC’s definition
as stated on its website.
Critical Thinking Exercise
What would you do if you saw a fellow employee taking home non-narcotic medication
samples from your employer’s office?
Discussion Cases
1. A pharmaceutical salesperson has just brought in a sup-
ply of non-prescription vitamin samples for the physicians
in your practice to dispense to their patients. These vita-
mins are a new, expensive variety that is being given away
to patients who are on a limited income and cannot afford
to buy them. The other staff members take the samples
home for their families’ personal use. They tell you to do
the same as the samples will become outdated before the
physicians can use all of them. It would save you money.
a. What do you do?
____________________________________________
____________________________________________
b. Is your action legal? Why or why not?
____________________________________________
____________________________________________
c. Is your action ethical? Why or why not?
____________________________________________
____________________________________________
d. Does your physician/employer have any responsibility
for the dispensing of these free non-prescription
vitamins? Explain your answer.
____________________________________________
____________________________________________
e. What precautions should be taken when storing non-
prescription medications?
____________________________________________
____________________________________________
2. One of your coworkers recently told you that he is
HIV-positive. He shared information with you that his
partner is very ill with AIDS. You observe, while this man
is talking to you, that he has a small draining, open lesion
on his left arm. You are concerned about his health and
caution him to be careful. The next day you see that he is
on a list of CPR instructors who will be testing employees.
Your facility still uses an older version of CPR in which
there is mouth breathing performed on the “Annie.”
a. Who should you notify about your concerns?
____________________________________________
____________________________________________
b. Should you approach your coworker and tell him about
your concerns?
____________________________________________
____________________________________________
c. What legal recourse does your coworker have if he
loses his job because of his medical condition?
____________________________________________
____________________________________________
http://www.cdc.gov/
CHAPTER 7 Public Duties of the Health Care Professional 175
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176
Chapter 8
Workplace Law and Ethics
Learning Objectives
After completing this chapter, you will be able to:
8.1 Define the key terms.
8.2 Discuss the regulations concerning equal
employment opportunity and employment
discrimination.
8.3 Describe the regulations affecting employee
health and safety.
8.4 Discuss the regulations affecting employee
compensation and benefits.
8.5 Give examples of regulations affecting
consumer protection and collection practices.
8.6 Describe accommodations that can be
made in the workplace for persons with
disabilities.
8.7 List several questions that may be legally
asked during an employment interview
and several questions that are illegal to ask
during the interview.
8.8 Discuss guidelines for good hiring
practices.
Key Terms
Affirmative action programs
Age Discrimination in
Employment Act (ADEA)
Americans with Disabilities Act
(ADA)
Americans with Disabilities
Act Amendments Act of 2008
(ADAAA)
Autonomy
Bias
Bloodborne pathogens
Civil Rights Act
Clinical Laboratory Improvement
Act (CLIA)
Consolidated Omnibus Budget
Reconciliation Act (COBRA)
Credit Card Accountability and
Disclosure Act of 2009
Creditor
Debtors
Discrimination
Drug-Free Workplace Act
Emergency Medical Treatment
and Active Labor Act
(EMTALA)
Employee Retirement Income
Security Act (ERISA)
Employment-at-will
Equal Credit Opportunity Act
Equal Employment Opportunity
Act (EEOA)
Equal Employment Opportunity
Commission (EEOC)
Equal Pay Act
Ethnocentric
Fair Credit Reporting Act
Fair Debt Collection Practices Act
Fair Labor Standards Act (FLSA)
Family and Medical Leave Act
(FMLA)
Federal Insurance Contribution Act
(FICA)
Federal Wage Garnishment Law
Free Appropriate Public Education
(FAPE)
Garnishment
Gatekeeper
Individuals with Disabilities
Education Act (IDEA)
Just cause
National Labor Relations Act
(NLRA)
Occupational Safety and Health
Act (OSHA)
Other Potentially Infectious
Material (OPIM)
Parenteral
CHAPTER 8 Workplace Law and Ethics 177
Patient dumping
Preempt
Pregnancy Discrimination Act
Probable cause
Rehabilitation Act
Right-to-know laws
Social Security Act
Stereotyping
Title VII
Truth in Lending Act
(Regulation Z)
Unemployment compensation
Vesting
Workers’ Compensation Act
Wrongful discharge
The Case of Janet K. and Epilepsy
Janet K. had suffered from epilepsy since she was an infant. Her
condition was well controlled as she entered adulthood, and she
was able to complete a nursing program in good health. She
particularly enjoyed working as a scrub nurse in the operating
room. Upon graduation she applied at the large university
teaching hospital where she had performed her clinical work
during her nursing program. The hospital knew of her epilepsy
history and offered her a job in their medical records department.
Janet petitioned to be able to work in surgery but the hospital
administrators felt that it was too dangerous for Janet and for the
surgical patients if she should have a seizure there.
While working in medical records, Janet’s seizures began
to return. She would have a seizure at least every month even
though her medications had been changed. Janet noticed that
some of her fellow medical records technicians would stay away
from her for fear of not knowing how to help her during a seizure.
One afternoon a physician was dictating his case records in a
cubicle next to Janet’s when she had a seizure. He helped her
and then went to the hospital administrator and told her that Janet
should not be allowed to work in a hospital because it gave the
hospital, with its image of healing, a bad reputation.
Janet, at the age of 27, was the only one terminated because
of departmental downsizing.
1. Are there some medical or mental conditions that should
prevent a person from working in a hospital or other
medical setting? If so, what are they?
2. What should have been done when Janet’s coworkers
shunned her?
3. Was the physician who helped Janet when she had a
seizure correct in asking the hospital administrator to
dismiss (fire) her?
4. Should Janet have been given the opportunity to work in
surgery? Why or why not?
Introduction
Applied ethics always involves people. And where better to promote good ethical
practices than in the workplace—whether it is a hospital, medical office, clinic, nursing
home, hospice, or agency? While it is just common sense to treat people one works
with well, it is often in the workplace where people suffer discrimination, harassment,
and other unethical practices. Many of our workplace and employment laws were
established as far back as the 1930s. They are some of the reasons that we have fair
standards and protection in the workplace today.
Professionalism in the Workplace
The profession of medicine, whether practiced by a physician, nurse, medical assistant,
or other health care professional, is inherently meaningful. A medical or health-related
career usually requires several years of education to achieve competence, and, in many
cases, it is a career that a person selects for all of their working years. Health care
professionals can justifiably find pride in their achievements.
Medical professionals do not enter their field of study with the expectation that
they will have to compromise their professional behavior. However, it has become
increasingly difficult to provide the level of care and concern for patients given the ele-
ments of increased documentation and sicker patients staying fewer days in a hospital
to recover from illness or surgery. In some cases, very ill patients are being seen in
178 PART 2 The Health Care Environment
medical offices, emergency room settings, or clinics because they do not have insurance
to pay for a hospital stay.
In today’s world of specialization, patients may have several physicians managing
their care. This can result in the patient’s spending less time with any one medical
professional. In fact, many patients feel that the care they receive has become
depersonalized as they never get to know any one caregiver very well. The reverse is
also true, as medical professionals become frustrated that they do not have enough time
to really get to know and understand their patients.
The case of Libby Zion illustrates this point. Libby was an 18-year-old college
student who was treated in a large, busy New York teaching hospital. She entered the
hospital’s emergency room with moderate aches and pains suggesting influenza. Libby
also exhibited agitated behavior but did not tell the emergency room physician that
she used drugs. She was given a sedating medication as well as physical restraints to
control her agitated movements. Libby died eight hours after she was admitted. Her
parents and several journalists investigated the competence and amount of time spent
by the medical personnel who cared for Libby. They also examined information about
the long hours that interns and residents work in a teaching hospital. The results of the
parents’ crusade, media coverage, and a resulting court case meant that there is now a
closer look at accountability and supervision in teaching hospitals. Interns and residents
now have mandatory rest periods and days off work as a result of the Libby Zion case.
More than 25 years after Libby’s death, her legacy lives on in the important changes
made in the care of patients.
Professionalism means that each health care professional will monitor the time and
care that each patient receives so that the care is effective, as well as efficient. Ideally,
attention should be paid to persons who appear agitated to determine if drug use may be
involved. In addition, screenings should always take place for individuals who appear
agitated. Professionalism means that we treat all patients with the same standards
regardless of race, color, religion, gender, or national origin. This responsibility should
not be left to others.
Med Tip
Efficiency is getting the job done; effectiveness is doing the job right! This is especially true
in health care.
Discrimination in the Workplace
In spite of knowledge about good health care habits, people working in the health
care field often suffer from many of the same problems that affect their patients. For
example, overweight nurses, medical assistants, and other health care professionals may
experience discriminatory behavior because of their weight. In some cases, overweight
or obese health care professionals are either not hired or else they are placed in an
unpopular work setting where they will not be seen or promoted. It is an injustice to
discriminate against either a fellow employee or a patient because of their weight.
Some companies and hospitals have implemented wellness programs, including
weight loss, with the belief that healthy employees are more productive. Ethical
concerns about privacy issues arise even from well-meaning wellness programs when
electronic data records are kept to track the employee’s weight loss.
Med Tip
As simple as this sounds, always treat a coworker as you wish to be treated.
CHAPTER 8 Workplace Law and Ethics 179
Privacy and the Workplace
The federal government has taken an active role in attempting to prevent violations
of a patient’s privacy. The Health Insurance Portability and Accountability Act of 1996
(HIPAA), discussed in Chapter 10, includes stiff fines and other penalties if a patient’s
privacy is violated. However, in spite of federal regulations, some health care workers
are still invading a patient’s privacy, often just to satisfy curiosity.
For example, seven-year-old Nixzmary Brown was found beaten and starved
and left to die in a small room that her brothers and sisters called “the dirty room.”
Her mother and stepfather were both charged with the crime. According to New
York’s Health and Hospitals Corporation, dozens of workers, including doctors,
nurses, technicians, and clerks, opened the patient’s computer file even though they
had nothing to do with the case. There were several employees who had a legitimate
reason to view the file on a “need-to-know” basis, but investigators believed that 39
employees opening the file were just too many. It was determined that “sheer curios-
ity” had driven many of the health care workers to open Nixzmary’s file. The stepfa-
ther was convicted in 2006 of first-degree manslaughter and sentenced to 29 years in
prison. The mother was convicted in 2008 of first-degree manslaughter and sentenced
to 43 years in prison.
On October 9, 2009, the governor of the state of New York signed into law
“ Nixzmary’s Law,” making the maximum penalty for torturing and murdering a child
life in prison without parole. This child’s death caused an overhaul of the Child Protec-
tive Services system. The 39 hospital employees who violated the child’s privacy were
suspended for 30 to 60 days without pay and received privacy training before returning
to work.
Med Tip
Opening a patient’s medical file should always be on a “need-to-know” basis. Any other
reason may constitute an illegal action. In addition, photos of patients cannot be taken,
either for teaching purposes or for personal use, without the patient’s permission.
It is just as inappropriate to look at a coworker’s personnel file as it is to illegally
examine a patient’s file. A coworker’s personnel evaluations and salary levels are
privileged information. Viewing personnel records without a “need to know” could
result in dismissal from a job.
Cultural Considerations
A person’s background and experience heavily influence personal beliefs. Ideally,
everyone entering the medical profession should examine his or her own cultural
background to be sure he or she will be able to provide patient care in sensitive
situations.
Because family can be extremely important in some cultures, do not be surprised
if your patient brings along the entire family for emotional and physical support. In
some cultures, a male must always be present if a female member is being examined
or meeting with strangers.
The diversity of the U.S. culture presents many challenges for both the health
care professional and the patient. Stereotyping can occur when negative generalities
concerning specific characteristics about a group are applied unfairly to an entire
population. For example, a statement such as, “Those people are all welfare cheats” is
unfair and incorrect when applied to a large group of people. A bias, or unfair dislike
180 PART 2 The Health Care Environment
or preference against someone, can prevent a health care professional from making an
impartial judgment. Do not judge a person by their clothes, body piercings or tattoos,
or hygiene. As an example, different cultures have their own practices for personal
hygiene. A bias occurs when a health care professional doesn’t pay any attention to a
person who displays poor hygiene or has a body odor.
Med Tip
It is always wise to keep one’s opinions about the use of deodorants, clean clothing, and
frequent bathing to oneself, unless the patient’s health is suffering as a result of poor
hygiene conditions. Slang terms for dealing with bodily functions should never be used.
It’s perfectly acceptable to ask a patient if he or she has to use the bathroom.
Ethnocentric people tend to believe that their way of viewing and experiencing
the world is superior to others’ views. It is a method for evaluating the actions of
others according to our own cultural background. This is inappropriate and judgmental.
For example, if one is heterosexual, then to decide that gay, lesbian, transgender, or
bisexual persons are inferior to oneself is ethnocentric and can result in stereotyping
and prejudging people. In order to avoid these negative behaviors:
• Be aware of your coworkers’ and patients’ beliefs.
• Learn as much as you can about other cultures, races, and nationalities.
• Be sensitive to the feelings of others.
• Evaluate all information before accepting it as a belief.
• Always avoid ethnic jokes. Walk away if a coworker is telling an ethnic or disrespect-
ful joke.
• Be open to differences in other people.
Communication can be a challenge for many people who do not understand
English. For example, a nod of the head up and down means “yes” to an American, but
it means “no” in some other cultures. Non-English-speaking patients need brochures
and handouts in their own language. Many publications are now available in Spanish
and other languages. Always attempt to find an interpreter when giving instructions to
a non-English-speaking patient. If one is unavailable, “Google Translate” may be helpful
in translating English words and phrases into a second language. It is imperative, and in
some cases required by law, that an interpreter be present when explaining important
information to a patient. Patients in hospitals and other medical facilities are now
routinely given a form to sign asking if they wish an interpreter. Patients may have
to be assisted in finding the best community resource to help them because in some
cultures it is unthinkable to ask strangers for help.
Med Tip
Health care professionals must be ready to help people regardless of their income levels,
cultural origins, or attitude.
Because there is often a strong ethnic population in some hospitals and medical
practices, it is wise to learn all you can about their beliefs. For example, in some cultures
it is considered rude or disrespectful to look directly into a person’s eyes or to touch
the top of a child’s head. Some cultures, including Americans, consider modesty to be
extremely important. It is always important to make sure that patients are covered with
either a gown or draped sheet when having an examination. In some cultures a woman
CHAPTER 8 Workplace Law and Ethics 181
is not allowed to undress or bare any part of her body in front of a man without her
husband’s permission. Shaving hair before an examination or surgical procedure is not
allowed in some cultures. These cultural restrictions can pose difficult situations that
need to be handled carefully and sensitively.
Med Tip
It is wise to keep in mind how you would wish to be treated if you were a patient in another
country without the use of the language.
Med Tip
It is never appropriate to judge, with either verbal or nonverbal criticism, another person’s
religious customs and beliefs. An exception occurs when there is evidence of abuse as a
result of a religious practice.
Many people, especially the elderly, do not like to be addressed by nicknames such
as “dear” or “honey.” It is always wise to use a title such as Ms., Mrs., or Mr. unless told
otherwise by the patient.
Religious Considerations
Respecting the religious beliefs of others can be a difficult, but necessary, responsibility
for the health care professional. Advance directives, consent to treatment, and the use of
birth control devices are often influenced by a person’s religious beliefs. In some cases,
it may mean rejecting medical interventions such as blood transfusions, but in other
instances it might mean that a patient rejects all medical care.
From an ethical perspective, the principle of patient autonomy, or independence
for their beliefs, is always an important consideration. However, all of these, sometimes
conflicting, conditions can result in confusion for the medical professional. As long as a
person is competent, he or she has the right to make his or her own decisions. Bioethi-
cal and legal issues arise when a person is called upon to make this decision, based
upon his or her own religious beliefs, for another person such as a child or an elderly
or incompetent adult. In these cases, a guardianship may have to be established by the
courts so that the best interests of the patient are observed. There will always be ethi-
cal discussions about where religious boundaries should be drawn and when the state
should step in to protect the individual.
There are some beliefs that do not allow a person to receive a blood transfu-
sion. When such a situation occurs, a physician may seek a court order for a child to
receive blood over the objections of the parent. The case of Prince v. Commonwealth
of Massachusetts reasoned that “Parents may be free to be martyrs themselves. But it
does not follow that they are free in identical circumstances to make martyrs of their
children” (Prince v. Commonwealth of Massachusetts, 321 U.S. 158 1944). An even more
difficult situation arises when a pregnant mother refuses a transfusion that could save
her life and the life of her unborn child. According to her religious beliefs, the mother
may believe that “ingesting blood” may doom her in the eyes of her God. In this case,
a physician, or hospital administrator, would have to seek a court order to administer
the blood transfusion.
182 PART 2 The Health Care Environment
An employer has a legal obligation under the Civil Rights Act (discussed later in
this chapter) to make accommodations so that employees can practice their religious
observations. For example, members of the Jewish religion must observe Saturday as
the Sabbath day on which they may not work. Therefore, it would be improper to set up
Friday evening meetings after sundown or Saturday meetings that require all employees
to attend. It would also be inappropriate to schedule Sunday morning meetings that
Christian employees are required to attend. The law also requires that businesses must
provide reasonable accommodations, such as a prayer room or a special cleansing
bathroom, for employees to practice their religion, as long as it doesn’t interfere with
other employees’ rights.
Effective Hiring Practices
There are many examples of lawsuits relating to hiring practices that would not have
happened if the employer had acted within the confines of the law. Fairness is one of
the most important elements when supervising employees. In addition, employers can
improve the quality of their employees by using an effective screening process before
the actual hiring takes place. It is imperative to perform thorough background checks on
applicants in the health care field because they may not confess to a criminal record on
an application form. Employers are at risk of lawsuits when they hire employees who
are a foreseeable danger to others. Some recommendations for good hiring practices
are presented in Table 8.1.
Med Tip
Remember that the patient’s wishes should be honored if they differ from our own beliefs.
The exception to this is when a belief may result in harm to either the patient or the health
care worker. In that case, a supervisor must intervene.
• Develop clear policies and procedures on hiring, discipline, and termination of employees.
• Effectively screen potential employees’ backgrounds.
• Clearly state in all written materials, such as employee handbooks, memos, and manuals,
that an employee handbook is not a contract.
• Use a two-tier interview screening process. Have candidates interviewed both by health care
professionals who will supervise or work with the new employee and by trained human resource
or personnel department employees.
• Carefully assess the applicant’s skill level by having him or her perform some of the position
requirements (i.e., drawing blood samples, teaching, performing surgical setups).
• Develop an application form that asks for appropriate information about the applicant’s
qualifications.
• Provide a job description to every employee.
• Develop a progressive disciplinary procedure and make the policy known to all employees
and supervisors.
• Whenever possible, have human resource personnel present during the firing process.
Document what is said during this process.
• Provide in-service training to supervisors on how to conduct job interviews and motivate
and discipline employees.
• Become familiar with the legal and illegal questions that can be asked in an employment
interview.
Table 8.1 Recommendations for Good Hiring Practices
CHAPTER 8 Workplace Law and Ethics 183
The employee handbook usually explains behaviors, such as sleeping on the job,
that can cause an employee’s termination. Management needs to use care when issuing
a handbook. Statements in employee handbooks have been interpreted as “implied con-
tracts” in a court of law. In Watson v. Idaho Falls Consolidated Hospitals, Inc., a nurse’s aide
claimed wrongful discharge and sued her employer, a hospital, for violating provisions
in the employee handbook when it terminated her. Employees had been asked to read
and sign a revised handbook to show that they understood hospital policies regarding
counseling, discipline, and termination. The court stated that management and the
employees were under an obligation to follow the policies stated in the handbook.
Because it was proved in court that the hospital violated the stated policy in the
handbook when it terminated her, Watson won her suit (Watson v. Idaho Falls Consol.
Hosp. Inc., 720 P.2d 632, Idaho 1986).
In another case, a Minnesota court held, in a wrongful discharge suit, that the
hospital’s employee handbook was clearly an employment contract. The handbook
contained detailed statements on conduct and procedures for discipline, which the
hospital violated when it fired the plaintiff (Harvet v. Unity Medical Ctr., 428 N.W.2d
574, Minn. Ct. App. 1988). These cases indicate that the employee handbook must be
carefully examined for any erroneous or misleading statements.
In addition, employees should be given opportunities to speak and present
evidence in their own behalf. Employees should be allowed to see, comment on, or
copy anything affecting them in written reviews and personnel file memos.
Legal and Illegal Interview Questions
The Equal Employment Opportunity Commission (EEOC) has strict guidelines on the
types of questions that can be asked during a job interview. These questions have both
ethical and legal considerations. Questions that may be interpreted as discriminatory
cannot be asked. In some cases, a question may be legal but still inadvisable for an
interviewer to ask. For example, while it is legal under the law to ask if an applicant
is married, it is inadvisable because it may be discriminatory. Marriage has nothing to
do with job performance. If an unmarried applicant is hired, a married applicant may
believe that he or she was not given the job based on marital status. Table 8.2 contains
a list of questions you can and cannot ask during an interview.
Med Tip
In an interview, always stop to remember what you cannot ask. If in doubt, don’t ask!
Questions Legal/Illegal
Age? Legal to ask applicants if they are between the ages of 17 and 70, but not to ask their specific age. If their
age falls outside these boundaries, then it is legal to ask their birth date.
Birthplace? Legal, but inadvisable to ask where the applicants, their parents, spouse, or children were born. It is illegal to
ask about their national heritage or nationality or that of their spouse.
Address? Legal to ask, along with how long the applicant has lived there.
Married? Legal to ask, but inadvisable.
Maiden name? Illegal as this could indicate a marriage. May inquire if reference information (educational, employment,
license) is under a different name.
Children? Illegal to ask. It is also illegal to ask any questions relating to childcare arrangements.
Height and weight? Illegal to ask unless it relates to the job requirements.
Table 8.2 Legal and Illegal Questions
(Continued )
184 PART 2 The Health Care Environment
Federal Regulations Affecting
Professionals
Both state and federal laws regulate the employer (physician) and employee (staff)
relationship. In some cases, local laws in a particular city or county may also regulate
a medical practice. Therefore, health care facilities and medical practices must remain
current on regulations affecting employment practices, such as health, safety, compensa-
tion, workers’ compensation, unions, and discrimination laws. Generally, federal laws
apply only to those businesses or organizations that employ a declared number of
employees (such as 15, 20, 50, or more) and who work a minimum number of weeks
in a period of a year. It is always wise to seek advice from legal counsel or a corporate
attorney, if the organization has one on staff, concerning specific cases.
Med Tip
It is important in a health care setting to make careful background checks—especially
relating to drug use—before hiring an individual.
Questions Legal/Illegal
Race or color? Illegal to ask.
Religion or creed? Illegal to ask, but it is legal to ask if working on a particular day, such as a Saturday or Sunday, would
interfere with applicant’s religious practices.
Ever been arrested? Illegal to ask because an arrest does not indicate guilt. It is legal to ask if the applicant has ever been
convicted of a crime or have any pending felony charges. For example, “Have you been convicted within
the past year on drug-related charges?”
Citizenship? Legal to ask, “Are you a citizen of the United States?”
Handicaps? Illegal to ask if an applicant has a handicap or a disease. It is legal to ask if the applicant has any physical
impairment that would affect his or her ability to do the job.
Organizations you belong to? Legal to ask applicants if they belong to any organizations. Illegal to ask about membership in any specific
organization or to require applicants to list the organizations to which they belong.
Languages? Legal to ask what languages a person can speak or write. However, it can be perceived as discriminatory
and a method to determine a person’s national origin.
Military experience? Legal to ask if the person has been a member of the armed forces, type of training, and when discharged.
Illegal to ask what type of discharge was received (honorable, dishonorable, medical, etc.).
Med Tip
It is a widely accepted policy that all employees, whether working in the health care field
or elsewhere, should receive time away from their workstation for a lunch break (½ hour)
and two 15-minute breaks during an eight-hour workday. These breaks may be required as
part of a union agreement if employees are unionized. These policies may be established
in individual states by the Department of Labor.
In most situations, federal laws preempt, or overrule, state laws. However, there
are some exceptions. One occurs when there is not a federal law relating to a topic,
in which case the states can then regulate it. A second exception occurs if the court
has already ruled that state law does not conflict with federal law, in which case the
state law is enforced. Another exception is called a complete preemption, in which
Congress prohibits states from regulating a particular area of law. An example of this
is the Employment Retirement Income Security Act (ERISA), which is discussed later
in this chapter.
Table 8.2 (Continued )
CHAPTER 8 Workplace Law and Ethics 185
The major categories of federal laws regulating the employer–employee relationships
include equal employment opportunity and employment discrimination; employee
health and safety; compensation and benefits regulations; consumer protection and
collection practices; and federal labor acts. In discussing these regulations, many of the
legal terms, such as a law and an act, are interchangeable. The cases discussed in this
chapter illustrate the variety of lawsuits relating to these regulations.
Med Tip
Each state has its own individual state and local laws. Always determine the local laws
that pertain to your particular area. Local county health departments are a good source
of information.
Equal Employment Opportunity
and Employment Discrimination
The government regulates many aspects of the employment relationship, with laws that
affect recruitment, placement, pay plans, benefits, penalties, and terminations. The basic
assumption of the law is that, in the workplace, people must be judged primarily by
their job qualifications and performance. A discussion of these laws should be prefaced
with a look at the historical doctrine of employment-at-will.
Employment-at-Will Concept
The common-law doctrine of employment-at-will has historically governed the
employment relationship. Employment-at-will, in which there is no contract of
employment, means that employment takes place at the will of either the employer
or the employee. Thus, the employer may terminate a person’s employment at will,
without notice, at any time, and without a reason. Conversely, the employee may quit
at any time, without notice and without a reason. The exception to this occurs when
there is a specific employment contract between the employer and employee, specify-
ing the duration and terms of employment. Then the relationship cannot be terminated
during the contract period unless some provision of the contract has been violated by
the employer or employee. The only protection afforded an at-will employment is that
employees cannot be fired for an illegal reason—for example, because of the color of
their skin or their age.
This concept of termination for any reason without incurring liability when there is
employment-at-will had been widely accepted. However, employment-at-will has begun
to lose favor. Wrongful-discharge lawsuits, in which the employee believes the employer
does not have a just cause, or legal reason, for firing the employee, have become more
common. An example of this occurs when the employer asks employees to perform
procedures for which they are not trained or that are not within the scope of their license.
Even if employers win a wrongful-discharge lawsuit, they may ultimately be the losers
because of the negative publicity and effect on employee morale. See Table 8.3 for a list
of equal employment opportunity and employment discrimination laws.
Title VII of the Civil Rights Act of 1964,
Amended in 1991
Title VII of the Civil Rights Act prohibits discrimination (unfair or unequal treatment)
in employment based on five criteria: race, color, religion, gender, or national origin.
This strongly worded act means that employers may not refuse to hire, unlawfully
186 PART 2 The Health Care Environment
discharge, or in any other way discriminate against employees based on these five
criteria. This proposal, which came from the Kennedy administration and was enacted
during the Johnson administration, is considered one of the most important of all pieces
of legislation, as it regulates opportunity and discrimination in employment. This act
applies to all organizations that have 20 or more employees working 20 weeks or more
during a year.
Title VII affects all aspects of patient care in institutions that receive federal assis-
tance, such as Medicare and Medicaid. In addition, Title VII created the U.S Equal
Employment Opportunity Commission (EEOC). The EEOC enforces provisions under
Title VII. These include the Age Discrimination in Employment Act, the Equal Pay Act,
and a section of the Rehabilitation Act.
• Title VII of the Civil Rights Act of 1964
• Civil Rights Act of 1991
• Equal Employment Opportunity Act (EEOA) of 1972
• Pregnancy Discrimination Act of 1978
• Age Discrimination in Employment Act (ADEA) of 1967, amended in 1991
• Rehabilitation Act of 1973, amended in 1974
• Americans with Disabilities Act of 1990, amended in 2008
• National Labor Relations Act (NLRA) of 1935, amended in 1947
Table 8.3 Equal Employment Opportunity and Employment Discrimination Laws
Med Tip
Some of the most frequent violations in the health care employment field are related to
Title VII issues.
The Equal Employment Opportunity Commission (EEOC) monitors Title VII, and
the Justice Department enforces the statute. In some cases, the EEOC defers enforce-
ment to local and state agencies. Employees must exhaust all administrative remedies
offered from the EEOC before they can sue their employer under Title VII. The Equal
Employment Opportunity Act, the Pregnancy Discrimination Act, and the Civil Rights
Act of 1991 have further amended this act.
Title VII also makes sexual harassment a form of unlawful sex discrimination.
Sexual harassment is defined as “unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature.” Quid pro quo, a Latin
term meaning “something for something,” occurs when one valuable thing, such as
a sexual favor, is given in exchange for another thing, such as job advancement. An
employee who quits a job because sexual harassment created an offensive or hostile
work environment may sue the employer for damages.
Affirmative action programs to remedy discriminatory practices in hiring minority
group members are also covered under Title VII. These programs, required by federal
statute, require that positive steps, such as hiring minority personnel, be taken to
remedy past discrimination and to take steps to prevent future discrimination. Courts
may mandate that affirmative action programs be implemented if there is evidence
that an employer has intentionally discriminated against a particular minority group.
Who Is an Employee Under Title VII?
Title VII only prohibits employers from discriminating against employees. If an
employer withholds employment taxes from a person’s income, then that person is
CHAPTER 8 Workplace Law and Ethics 187
considered an employee. While some cases are less clear, in general, if the employer
can control the details of that person’s work then the person is considered to be an
employee. In some cases, physicians who have lost medical staff memberships and
thus hospital admitting privileges have been able to sue the hospital under Title VII. An
example of this is a federal case in which Dr. Pardazi sued the Cullman Medical Center.
The federal case was tried in the 11th Circuit Court, and Title VII was the federal law
that won the case for Pardazi (Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 11th Cir. 1988).
Who Is an Employer Under Title VII?
A person who employs the services of another and provides payment for those services
is considered an employer. In addition, an employer has the right to control the physi-
cal conduct of the employee in performing the service. The statute does not apply to
independent contractors. A coworker is not an employer and, thus, is not liable under
Title VII. The courts have also found that a parent company of the employer is not liable
as the employer under Title VII (Garcia v. Elf Atochem, N. Am., 28 F.3d 446, 5th Cir. 1994).
Filing with the EEOC
Most EEOC actions begin with the filing of a charge of discrimination by an individual
who believes he or she has been discriminated against. A charge of discrimination must
be filed within 180 days following the incident unless the facts warrant an exception
that extends the period to 300 days. After a charge of discrimination is filed, the EEOC
will conduct an investigation. If the EEOC finds probable cause that Title VII may have
been violated, attempts are made to mediate the matter.
Title VII directs the EEOC to (1) undertake studies and provide information and
technical assistance to employers, labor organizations, and the general public concerning
effective means available to implement this Act; and (2) carry on a continuing program
of research, education, and technical assistance with specified components related to
the purposes of this Act.
Civil Rights Act of 1991
Congress amended Title VII by passing the Civil Rights Act of 1991. Wrongful dis-
charge suits fall under this law. The Civil Rights Act of 1991 permits the court to award
both compensatory damages (for the loss of income or emotional pain and suffering)
and punitive damages (to punish the defendant) to mistreated employees. Before this
amendment, only compensatory damages were awarded.
Title VII provides that a hospital must treat physicians, nurses, other employees,
and patients in a nondiscriminatory manner. It also prohibits hospital employees,
such as nurses, from discriminating against patients, physicians, or fellow employ-
ees. In Simkins v. Moses H. Cone Hospital, a federal court held that two hospitals were
prohibited from denying physicians appointments to the hospital staff on the basis
of race. The court also prohibited these hospitals from refusing to admit patients or
segregate patients on the basis of race (Simkins v. Moses H. Cone Hospital, 323 F.2d 959,
4th Cir. 1963).
Equal Employment Opportunity Act (EEOA) of 1972
The Equal Employment Opportunity Act (EEOA) authorizes the EEOC to sue employ-
ers in federal court on behalf of a class of people or an individual whose rights under
Title VII have been violated.
Pregnancy Discrimination Act of 1978
Under the Pregnancy Discrimination Act, employers must treat pregnant women as
they would any other employee, providing they can still do the job. This act has saved
jobs for women and allowed them to advance even if they became pregnant or had to
188 PART 2 The Health Care Environment
take a short leave for childbirth. An employer cannot force a woman to quit her job
because she is pregnant. In addition, under this law, a woman cannot be refused a job
because she has had an abortion. The pregnant woman is assured of equal treatment in
such areas as disability, sick leave, and health insurance. The employer’s medical plan
must cover pregnancy in the same way it would cover other medical conditions. If the
worker is unable to work because of the pregnancy, then she qualifies for sick leave on
the same basis as all the other employees.
If the employer offers employee leaves for disabilities, then a similar leave must
be offered for pregnancy. Mandatory maternity leaves violate Title VII, because the
Pregnancy Discrimination Act of 1978 is an amendment to that statute. In addi-
tion, the employer’s health plan must provide coverage for the dependent spouses
of employees.
A federal district court found that a hospital had violated the Pregnancy Discrimi-
nation Act when it fired an X-ray technician upon learning that she was pregnant. The
court felt that while it was necessary for the X-ray technician to avoid working in some
areas of the X-ray department because of her condition, there were less discriminatory
alternatives that the hospital could have used (Hayes v. Shelby Memorial Hosp., 726 F.2d
1543, 11th Cir. 1984).
This statute has many aspects that require special considerations. For instance, one
federal court held that an employee who had job absences because of infertility treat-
ments was not protected under this act (Zatarain v. WDSU-Television, Inc., WI 16777 E.D.,
La. 1995). In a 1994 case, a federal appellate court ruled that a pregnant home-health
nurse who refused to treat an AIDS patient could be discharged under this statute
(Armstrong v. Flowers Hosp., 33 F.3d 1308, 11th Cir. 1994).
Age Discrimination in Employment Act (ADEA)
of 1967, Amended in 1991
The Age Discrimination in Employment Act (ADEA) protects persons 40 years or
older against employment discrimination because of age. This law applies to employers
who have 20 or more employees working for them 20 or more weeks during a year.
The employer will not be liable for violation of this law if there are extenuating
circumstances, such as if the person does not have the ability to perform the job. If two
people are up for hiring or a promotion and one of them is over 40, then the employer
must be able to show (in writing) why the younger person, if hired or promoted, is more
qualified. Education and performance, in addition to other factors, count toward quali-
fication. Mandatory retirement is prohibited under this law except for certain exempt
executives.
Med Tip
Note that women and men over 40 are protected by both Title VII and the Age Discrimination
in Employment Act.
Employers must be cautious about what they say or put into writing in the event
that they must terminate a person’s employment. For example, in a 1985 age discrimina-
tion suit, a 62-year-old supervisor nurse resigned and then sued the hospital because its
administration had told her “new blood” was needed and made comments about her
“advanced age.” She believed these statements made working conditions intolerable.
The nurse supervisor won the suit (Buckley v. Hospital Corp. of America, Inc., 758 F.2d
1525, 11th Cir. 1985).
CHAPTER 8 Workplace Law and Ethics 189
Rehabilitation Act of 1973, Amended in 1974
The Rehabilitation Act prohibits employment discrimination of the handicapped.
This act prohibits discrimination based on disability in any institution that receives
federal financial assistance. Therefore, a hospital or agency that receives Medicare and
Medicaid reimbursement must comply with this law. However, courts have held in
favor of plaintiffs, such as hospitals and nursing homes, that are not equipped to care
for a special-needs patient such as a violent or aggressive patient who abuses the staff
(Grubbs v. Medical Facilities of America, Inc., 879 F. Supp. W.D., Va. 1995).
This act had a major influence on the Americans with Disabilities Act of 1990
because it included a very broad definition of “handicapped.” It included people with
physical or mental impairment, people who have had an impairment, and people who
currently have an impairment. This definition protected people with a recognizable
handicap, such as a physical handicap, and opened many doors for people with handi-
caps such as mental disorders who were formerly forgotten. In addition, this law was
the beginning of a legal means for people to challenge their denial of employment for
physical or mental reasons.
Americans with Disabilities Act (ADA) of 1990,
Amended in 2008
There are 43 million disabled persons in the United States. The Americans with
Disabilities Act (ADA) prohibits employers who have more than 15 employees from
discriminating against such individuals. Persons with AIDS are also covered under
this act. In order to comply with this act, the employer must make reasonable accom-
modations, such as lowering telephones, installing ramps, and making elevator floor
numbers accessible to wheelchair-bound persons. The exception to this occurs if the
accommodations would be an undue hardship for the employer, such as the signifi-
cant difficulty of installing an elevator in an old building. The term undue hardship has
caused problems, as there is no clear definition of the term hardship or a dollar amount
that constitutes hardship. There is a two-year implementation window for employers
who must comply with this law. Patients, as well as employees, are protected under
this statute.
Private physicians can be held liable under the ADA for acts that take place in their
offices. For example, in 1995 a federal appellate court upheld a lower court decision
that an HIV-positive patient could sue his primary care physician for allegedly failing
to treat or refer him to another physician (Woolfolk v. Duncan, 872 F. Supp. 1381, E.D.,
Pa. 1995).
In Tugg v. Towney, a federal court ruled that the ADA requires a state to provide
counselors who use sign language to counsel deaf patients in state mental facilities.
According to the court, the facility did not satisfy the ADA statute by merely providing
mental health services through the use of interpreters (Tugg v. Towney, 864 F. Supp. 1201,
S.D. Fla. 1994). The ADA addresses the law as it affects the deaf. Other regulations, such
as IDEA or FAPE, address the rights of the deaf and hard of hearing.
Basic accommodations that can be made for persons with disabilities include:
• Parking spaces, clearly marked for the handicapped, near an accessible doorway
• Inclined ramps into buildings or over curbs in parking lots
• Elevator floor numbers that are accessible to wheelchair-bound patients and
employees
• Handicap-accessible bathrooms with handrails
• Hallways with at least 36 inches of clearance for wheelchairs
• Desks and counters that accommodate a wheelchair
190 PART 2 The Health Care Environment
• Telephone adapters for the hearing impaired
• Allowing a medically fragile child to carry a cell phone
• Permitting the use of tape recorders or laptop computers in class
• Allowing extra time for a student with a difficulty in movement or walking to move
between classrooms
Under Title III the ADA also prohibits discrimination against students with
disabilities in private schools that are considered public accommodations.
Americans with Disabilities Act Amendments
Act (ADAAA) of 2008
The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 (Public
Law, ADAAA) is an Act of Congress that became effective on January 1, 2009. This law
amended the Americans with Disabilities Act of 1990.
The ADAAA was signed into law by President George W. Bush on September 25,
2008, as a response to decisions made by the Supreme Court. This Court had interpreted
the original text of the ADA. However, members of the U.S. Congress believed that the
original decisions were limiting the rights of persons with disabilities. Therefore, the
ADAAA reversed those decisions by changing the law.
The ADAAA made changes to what the term disability meant by broadening and
clarifying this definition, resulting in an increase in the number and types of persons
who are now protected under this law. This act focuses not on whether the person with
a “disability” has an impairment that limits a life activity, but rather, whether a “covered
entity,” such as an employer, has discriminated against the employee.
Figure 8.1 shows a sign language teacher with a child who has a hearing impairment.
Individuals with Disabilities Education Act (IDEA)
of 1990
The Individuals with Disabilities Education Act (IDEA) was passed in 1990. In 2004,
it was reauthorized and revised to align with the requirements of the No Child Left
Behind Act (NCLB). One of the pillars of IDEA is the regulation Free Appropriate
Public Education (FAPE) for students with disabilities.
FIGURE 8.1 Sign Language Teacher
© Trevon Baker Photography
CHAPTER 8 Workplace Law and Ethics 191
Under FAPE, the educational services for students with disabilities must be
designed to meet their individual needs to the same extent that the needs of the
nondisabled students are met. The quality of services should be identical. Disability
can be a natural part of a person’s experience. But it should in no way diminish or lessen
their right to participate and to contribute to their education and society.
The FAPE regulation requires that a school district provide a “free appropri-
ate public education” to each qualified person with a disability who lives within
the school district’s jurisdiction, regardless of the nature or severity of the person’s
disability. To be “appropriate,” education programs for students with disabilities
must be designed to meet their individual needs to the same extent that the needs
of nondisabled students are met. This may include regular or special education and
related aids and services to accommodate the unique (special) needs of persons with
disabilities.
For children in elementary and secondary education programs, a “qualified”
person with a disability is one who is:
• of an age during which it is mandatory under state law to provide these services
to persons with disabilities;
• of an age during which persons without disabilities are provided such ser-
vices; or
• entitled to receive a free and appropriate public education under the IDEA.
Students with disabilities may not be excluded from participating in nonacademic
services or extracurricular activities on the basis of the disability. The students must be
provided with an opportunity to participate in activities such as physical education,
athletics, health services, recreational activities, transportation, and clubs supported
by the school and referrals to agencies that can provide assistance to persons with
disabilities.
National Labor Relations Act (NLRA)
of 1935, Amended in 1947
The National Labor Relations Act (NLRA), also called the Wagner Act, established
some of the most basic union rights. It guarantees the basic rights of employees in the
private sector to organize trade unions, to bargain collectively, and, when necessary,
to take collective action including to strike. This act prohibits employer actions such
as attempting to force employees to stay out of unions, and labels these actions as
“unfair labor practices.” This act set up the National Labor Relations Board (NLRB)
to enforce labor law in relation to collective bargaining and unfair labor practices.
The NLRB conducts elections when employers are expected to collectively bargain
with labor unions.
See Table 8.4 for a list of employee health and safety laws.
• Occupational Safety and Health Act (OSHA) of 1970
• Clinical Laboratory Improvement Act (CLIA) of 1988
• Health Maintenance Organization (HMO) Act of 1973
• Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985
• Drug-Free Workplace Act of 1988
Table 8.4 Employee Health and Safety Laws
192 PART 2 The Health Care Environment
Employee Health and Safety
Both state and federal laws regulate issues affecting an employee’s health and safety.
While a state law may be stricter than the federal law, it cannot be more lenient.
Occupational Safety and Health Act (OSHA) of 1970
Under the Occupational Safety and Health Act (OSHA), an employer is required to
provide a safe and healthy work environment and protect the worker against hazards.
OSHA regulations preempt all other state and local regulations regarding employee
safety and health, meaning that states may not pass any laws concerning the working
environment. In addition, there are right-to-know laws in many states that give
employees access to workplace safety information such as information about the use
of hazardous or toxic substances.
Employers and office managers should become familiar with OSHA regulations as
they apply to their specific fields, not only to protect employees but also to avoid fines for
OSHA violations, which can be severe. In addition, poor publicity and public relations
resulting from a serious OSHA violation can damage an office or company’s reputation.
Med Tip
It is better to err on the side of being too cautious when implementing OSHA regulations,
rather than being too casual.
Med Tip
Note that an employee may decline, in writing, to receive the hepatitis B vaccine. See
Table 8.5 for a list of potentially infectious materials.
In 1991, OSHA developed rules to protect health care workers from bloodborne
diseases. These are known as OSHA Occupational Exposure to Bloodborne Pathogens
Standards. OSHA also established severe penalties of up to $7,000 for each viola-
tion of these standards by employers. These standards apply to any employee who
has occupational exposure to infectious material. This is defined as a reasonable
anticipation that the employee’s duties will result in skin, mucous membrane, eye, or
parenteral (a medication route, such as by injection, other than through the digestive
tract) contact with bloodborne pathogens (disease-producing microorganisms) or other
potentially infectious material (OPIM), such as visible blood. Health care workers,
including physicians, nurses, medical assistants, laboratory workers, and housekeep-
ing personnel, have occupational exposure. The OSHA standards mandate that each
employee with occupational exposure must be offered the hepatitis B vaccination at
the expense of the employer (https://www.osha.gov/SLTC/bloodbornepathogens/
worker.protections.html).
• Body fluid, including semen, amniotic fluid, pleural fluid, and cerebrospinal fluid, contaminated with blood
• Saliva in dental procedures
• Vaginal secretions
• Tissues, cells, or fluids known to be HIV-infected
• Microbiological waste (kits or inoculated culture media)
• Pathologic waste (human tissue)
• Any unidentified body fluid
Table 8.5 List of Potentially Infectious Materials
https://www.osha.gov/SLTC/bloodbornepathogens/worker.protections.html
https://www.osha.gov/SLTC/bloodbornepathogens/worker.protections.html
CHAPTER 8 Workplace Law and Ethics 193
The Hazard Communication Standard (HCS) from OSHA is meant to reduce
injuries and illnesses in the workforce by alerting health care employees to potential
dangers and risks when using hazardous chemicals and materials. Safety data sheets
(SDS) must be posted wherever hazardous materials are used. Employees are instructed
to read the sheets and know how to handle all hazardous products, such as blood and
chemicals.
Med Tip
OSHA guidelines are available from the U.S. Department of Labor, Washington, DC.
• Evaluate the effectiveness of the laboratory’s policies and procedures.
• Identify and correct problems.
• Ensure the competence and adequacy of staff.
• Take corrective action if errors are found.
• Integrate corrective procedures into future policies and procedures.
• Document employee training and assess competency after the first year.
• Maintain the identity and integrity of patient samples during the entire testing process.
• Laboratory is subject to inspection every two years if performing moderate or high complexity tests.
Table 8.6 List of CLIA Laboratory Requirements
Clinical Laboratory Improvement Act (CLIA)
of 1988, Amended in 2012
The federal government now requires that all clinical laboratories that test human
specimens must be controlled. The Clinical Laboratory Improvement Act (CLIA),
establishing minimum quality standards for laboratories, has been amended several
times. The CLIA 1992 standards mandate that there must be written policies and
procedures for a comprehensive quality assurance program that will evaluate the
overall ongoing quality of the testing process. See Table 8.6 for a list of CLIA laboratory
requirements. (See Figure 8.2.)
CLIA testing regulations are mandated for most tests conducted in laboratories.
However, there are certain tests that are waived if they are simple to run, almost
foolproof, and if an erroneous result would not result in a negative impact on the patient.
The Food and Drug Administration (FDA) has the responsibility for categorizing the
tests and allowing the waiver (exemption) of testing. In general, tests approved by the
FDA for home use are usually waived, although the manufacturer must request the
waiver. Tests that require a microscope, calculations, or a judgment call are not waived
The OSHA standards refer to urine, stool, sputum, nasal secretions, vomitus, and
sweat only if there is visible evidence of blood. The OSHA compliance checklist for
medical facilities and offices includes eyewash stations, fire extinguishers, first-aid kits,
written training programs, labels for chemical and hazardous waste, sharps containers,
exit signs, spill kits, accident report forms, and chemical inventory lists.
Med Tip
In a medical workplace, additional safety issues may arise that are not found elsewhere,
including protecting individuals against bloodborne pathogens.
194 PART 2 The Health Care Environment
and must meet CLIA standards. It is always advisable to search the CLIA website
at www.hcfa.gov/medicaid/clia and www.cola.org for a complete list of waived tests.
If the laboratory test is not on this list, then it is not waived and must meet all CLIA
requirements.
Health Maintenance Organization (HMO)
Act of 1973, Amended in 1996
The Health Maintenance Organization (HMO) Act requires any company with at least
25 employees to provide an HMO alternative to regular group insurance for their
employees if an HMO is available in the area.
Many new HMOs were formed in response to this law. HMOs have been able to
cut health care costs in some areas by focusing on wellness such as well-baby physicals
and mammograms. Under an HMO, the patient does not have the same wide choice
of doctors as under a traditional health care plan. In addition, a patient may have to
get a second opinion and permission from the HMO before having a major procedure
performed. The HMO may make use of the concept of a primary care provider (PCP)
(often referred to as a gatekeeper) as a method of controlling costs. In a gatekeeper
situation, all medical care sought by a client must be channeled through the PCP, and
any referrals are made within the HMO provider list.
Consolidated Omnibus Budget Reconciliation
Act (COBRA) of 1985
The Consolidated Omnibus Budget Reconciliation Act (COBRA) is an important act
that covers a wide range of federal government financing for health insurance coverage
continuation after an employee has been laid off or left a job.
Millions of Americans are left without any health care coverage, many because of
job loss. COBRA has helped to decrease this number of uncovered Americans. Under
COBRA, a company with 20 or more employees must provide extended health care
insurance to terminated employees for as long as 18 months—usually, but not always,
at the employee’s expense. This insurance may be costly, but some people would be
unable to obtain insurance any other way. COBRA has enforcement power as all federal
funding may be lost for noncompliance.
FIGURE 8.2 Laboratory Technologists
http://www.hcfa.gov/medicaid/clia
http://www.cola.org/
CHAPTER 8 Workplace Law and Ethics 195
COBRA also contains an amendment called EMTALA (Emergency Medical Treat-
ment and Active Labor Act), which prohibits “patient dumping” from one hospital to
another if the patient does not have health insurance. EMTALA is more fully discussed
later in the chapter.
Drug-Free Workplace Act of 1988
Employers have become increasingly aware of how expensive drug-using employees
are in terms of decreased productivity, workplace accidents, and increased health care
costs. Even under the best security conditions, the nature of some health care organi-
zations, such as hospitals, medical offices, and clinics, allows for employee access to
various drugs (Figure 8.3).
FIGURE 8.3 All Health Care Professionals
Must Understand the Drug-Free Workplace
Act of 1988
© BSIP SA/Alamy
Med Tip
To prevent drug abuse, some organizations, such as hospitals, require drug testing as a
condition of employment.
Under the Drug-Free Workplace Act, employers contracting to provide goods or
services to the federal government must certify that they maintain a drug-free work-
place. The employer must inform the employee of the intent to maintain a drug-free
workplace and of any penalties, such as discharge, that the employee would incur for
violation of the policy.
Compensation and Benefits Regulations
Several laws influence the compensation (salary) and benefits provided to employees.
See Table 8.7 for a listing of compensation and benefits laws.
Social Security Act of 1935, Amended in 1983
The Social Security Act is a federal law that covers all private and most public sector
employees. This act laid the groundwork for unemployment compensation in the
196 PART 2 The Health Care Environment
United States. Social Security is paid by the employer and the employee in equal payroll
taxes and Medicare participant premiums. Social Security is composed of several differ-
ent, but related, programs: retirement, disability, dependent and survivor’s benefits, as
well as health benefits under Medicare. The amount paid to the retiree or disabled or
dependent survivor is calculated based on the worker’s average wages earned during
his or her working life.
Fair Labor Standards Act (FLSA) of 1938,
Amended in 2010
This is the main statute regulating employee benefits. The Fair Labor Standards Act
(FLSA) establishes the minimum wage, requires payment for overtime work, and
sets the maximum hours employees covered by the act may work. The act covers all
non-management employees in both for-profit and not-for-profit institutions.
The employer must pay one and one-half times the regular hourly pay rate for any
work the employee performs over 40 hours in a seven-day (one-week) period. FLSA
uses the single workweek to compute the hours of overtime. The law does not permit
averaging hours over two or more weeks. Thus, an employee who works 35 hours one
week and 45 hours the next—for a weekly average of 40 hours for the two weeks—must
still be paid the overtime rate for five hours.
One exception allows hospitals to negotiate an agreement with their employees to
establish a work period of 14 days. In this case, overtime pay would go into effect for
employees who work more than 80 hours in the 14-day period. It is also acceptable to
require fewer than 40 hours a week to qualify for overtime payment or a higher rate
than one and one-half times the regular hourly pay, but the employer cannot require
more hours or pay less than the law requires.
This law affects full-time and part-time hourly employees. Some workers, such as
management or salaried employees, are exempt from the minimum wage and overtime
requirement of the FLSA. In addition, part-time employees and employees who are part
of a time-sharing program generally do not benefit from this law.
The Wage and Hour Division of the United States Department of Labor has
established a number of criteria under the FLSA, including:
• The Federal minimum wage has been set at $7.25 per hour effective July 2009.
• Covered nonexempt employees must be paid overtime for hours worked over
40 hours per week at not less than one and one-half times their regular pay.
• Employers must display a FLSA poster outlining the requirements of the FLSA and
they must maintain employee time and pay records.
• Child labor provisions were established to protect the education opportunities and
to provide safe working conditions for young people.
• Social Security Act of 1935
• Fair Labor Standards Act (FLSA) of 1938
• Equal Pay Act of 1963
• Unemployment Compensation
• Federal Insurance Contribution Act (FICA) of 1935
• Workers’ Compensation Act
• Employee Retirement Income Security Act (ERISA) of 1974
• Family and Medical Leave Act (FMLA) of 1994
Table 8.7 Compensation and Benefits Laws
CHAPTER 8 Workplace Law and Ethics 197
Equal Pay Act of 1963
The Equal Pay Act, an amendment to the Fair Labor Standards Act, makes it illegal for
an employer to discriminate on the basis of gender in the payment to men and women
who are performing the same job. Equal work means work that requires equal skill,
responsibility, and effort under the same or similar working conditions. For example,
male orderlies cannot be paid more than female orderlies (Odomes v. Nucare, Inc., 653
F.2d 6th Cir. 1981).
Med Tip
Employees generally “earn” a certain number of paid sick days per year based on the
number of hours worked. These can be saved up and used when the employee has to
take time off for an illness or surgery. Sick days are not part of earned vacation days. In
general, they cannot be used except for sickness.
Unemployment Compensation
The Social Security Act was the origin of this insurance program. Today, employers pay
taxes into a state unemployment compensation plan that covers employees who are
unable to work through no fault of their own. The unemployment compensation laws
provide for temporary weekly payments for the unemployed worker. State unemploy-
ment compensation insurance taxes for individual employers vary from state to state
according to state laws and the turnover experience of the business.
In order to receive unemployment insurance, the employee must have worked
for an employer who has paid, or was required to pay, unemployment compensation
taxes. However, certain types of employers are exempt, such as employers for religious,
educational, or charitable organizations; employers for small farming operations;
employers of family members; and employers who use federal government labor.
While state unemployment insurance law provides temporary payments for those
who lose their jobs, if an employee is fired for good cause, the employee is not entitled
to unemployment benefits. In the case of Love v. Heritage House Convalescent Center,
the court found that a nursing assistant was properly denied unemployment benefits
because she was terminated for poor work attendance. According to the employee’s
personnel record, the convalescent center had already shown great tolerance in allowing
the employee to continue working as long as it had (Love v. Heritage House Convalescent
Ctr., 463 N.E.2d 478, Ind. Ct. App. 1983).
Unemployment compensation was also denied in a case in which a nurse’s aide
was discharged for leaving a resident unattended and unrestrained on a commode and
for using the medication of one patient (a medicated cream) on another patient (Starks
v. Director of Div. of Employment Section, 462 N.E.2d 1360, Mass. 1984).
Federal Insurance Contribution Act (FICA) of 1935
The Federal Insurance Contribution Act (FICA) is the oldest act relating to compensa-
tion. Under FICA, employers are required to contribute to Social Security plans for their
employees. There is a severe fine if the payment by the employer is not made on time.
This act also requires detailed record keeping documenting the employer’s payment.
The key to the proper implementation of this act is to hire a trusted office manager.
Workers’ Compensation Act
The Workers’ Compensation Act protects workers and their families from finan-
cial problems resulting from employment-related injury, disease, and even death.
198 PART 2 The Health Care Environment
Under the law, employers typically pay into a fund to help cover costs when an
employee is hurt or sustains an injury arising in the course of employment. Examples
include a back injury or a work-related disease, such as carpal tunnel syndrome from
improper or prolonged computer keyboard usage.
The goal of workers’ compensation is to get the employee back to work as soon
as possible. COBRA may allow for a retraining opportunity if the injury results in per-
manent inability to work in the same job. If there is a health problem within the first
three months of employment on a new job, the previous employer may have to pay the
workers’ compensation, as most of the benefits were paid into the employee’s fund by
that employer. Some medical practices only handle patients with workers’ compensa-
tion injuries. Workers’ compensation programs are administered at the state level with
no federal involvement or mandatory standards.
Under the Workers’ Compensation Act, an employee must submit a written notice
of the injury to the employer. Generally, an employee will receive only a partial salary,
such as two-thirds of salary, as compensation.
Workers’ compensation benefits are generally available even if the employee is
at fault for his or her injury, but an employee who has violated hospital policy is not
eligible to receive benefits. In Fair v. St. Joseph’s Hospital, the hospital employee was
disqualified from receiving compensation because he violated the policy by fighting
with a coworker (Fair v. St. Joseph’s Hosp., 437 S.E.2d 875, N.C. App. 1933).
Even if an employee is covered by workers’ compensation, the employee may
still sue and recover for injuries caused by nonemployees. For example, in a 1994
case in California, a psychiatric nurse sued a psychiatric patient who kicked her in
the abdomen, causing injury to her unborn child. The court ruled that the workers’
compensation law did not bar this lawsuit (Agnew-Watson v. County of Alameda, 36 Cal.
Rptr. 2nd 196, CT. App. Cal. 1994).
Employee Retirement Income Security Act (ERISA)
of 1974
The Employee Retirement Income Security Act (ERISA) regulates employee benefits
and pension plans. Before the passage of ERISA, widespread abuse of pension plans
led to their collapse, leaving retired employees without the pension benefits their com-
panies had promised. ERISA responded to this problem by requiring employers to put
aside money that can be used only to pay future benefits. ERISA also guarantees vesting
of pension plans.
Vesting refers to a certain point in time; such as after 10 years of employment,
when an employee has the right to receive benefits from a retirement plan. Under
ERISA, employees who stay with a company for 10 years are entitled to 50 percent of
the employer’s retirement plan even if they leave the company and take another job.
The employee is entitled to 100 percent of the employer’s pension contribution after
15 years of employment, when he or she becomes fully vested. In some cases in the
past, employees had been laid off just before they became vested. ERISA now prohibits
this practice.
Family and Medical Leave Act (FMLA) of 1994
The Family and Medical Leave Act (FMLA) allows both the mother and father to take
a leave of absence of up to 12 weeks, in any 12-month period, when a baby is born. The
employee’s job, or an equivalent position, must be available when he or she returns to
work. In almost all cases, the leave is without pay. The FMLA also requires employers
to provide unpaid leave for up to 12 weeks to employees who request leave for their
own or a family member’s medical or family-related situation, such as birth, death, or
adoption.
CHAPTER 8 Workplace Law and Ethics 199
The company must maintain the employee’s health coverage while the employee
is on a family medical leave. The employee must be returned to the original or equiva-
lent position he or she held before going on the leave. In addition, there cannot be any
loss of employment benefits that accumulated before the start of the leave.
Consumer Protection and Collection
Practices
The consumer protection and collection practices laws serve to protect the consumer
from unfair practices. See Table 8.8 for a listing of these laws.
Emergency Medical Treatment and Active Labor Act
(EMTALA) of 1986
The Emergency Medical Treatment and Active Labor Act (EMTALA) is a section of
the COBRA dealing with patient dumping, a slang term for transferring emergency
patients from one hospital to another if the patient does not have health insurance or
is unable to pay for services.
Patients entering a hospital emergency room must now be stabilized before they
can be transferred to another facility. If the patient cannot be stabilized then he or she
can be transferred to a regional trauma center without incurring an EMTALA violation.
According to this law, if a hospital is reported for patient dumping, the person doing
the reporting (the whistleblower) may not be penalized. The government may impose
stiff fines and even terminate Medicare agreements if the hospital is determined to
have violated EMTALA. In addition, the patient can also sue the hospital. A physician
may also be at risk for legal action if he or she misrepresents the patient’s condition.
However, EMTALA does not apply to health maintenance organizations, private
clinics, or private physicians’ offices. The practice of patient dumping has significantly
diminished since the passage of EMTALA.
Fair Credit Reporting Act of 1971
The Fair Credit Reporting Act, amended by the Credit Card Accountability and
Disclosure Act of 2009, establishes guidelines for use of an individual’s credit
information. If a patient has been denied credit based on a poor rating from a credit
agency, the patient must be notified of this fact and given the name and address of the
reporting agency. The agency must disclose the credit information to the consumer, who
may correct and update this information.
Equal Credit Opportunity Act of 1975
The Equal Credit Opportunity Act prohibits businesses, including hospitals
and medical offices, from either granting or denying credit based on the applicant’s
• Emergency Medical Treatment and Active Labor Act (EMTALA)
• Fair Credit Reporting Act of 1971
• Equal Credit Opportunity Act of 1975
• Truth in Lending Act (Regulation Z) of 1969
• Fair Debt Collection Practices Act of 1978
• Federal Wage Garnishment Law of 1970
Table 8.8 Protection and Collection Practices
200 PART 2 The Health Care Environment
race or gender—unfair treatment referred to as discrimination. This law mandates that
women and minorities must be issued credit if they qualify for it, based on the premise
that if credit is given to one person, it should be given to all persons who request it and
are qualified.
Truth in Lending Act (Regulation Z) of 1969
The Truth in Lending Act (Regulation Z) requires a full written disclosure about interest
rates or finance charges concerning the payment of any fee that will be collected in more
than four installments. This is also called Regulation Z of the Consumer Protection
Act. Installment payments are often used for orthodontia, obstetrical care, and surgical
treatment. It is legal to include a finance charge if a patient pays the bill in installments.
However, few physicians and dentists require this charge.
Fair Debt Collection Practices Act of 1978
The Fair Debt Collections Practices Act prohibits unfair collection practices by
creditors (institutions or persons who are owed money). For example, the Federal
Communications Commission (FCC) has issued guidelines for the specific times that
credit collection phone calls can be made. It also prohibits telephone harassment and
threats. Under this law, telephone calls for purposes of collections can only be made
daily between the hours of 8:00 am and 9:00 pm (Figure 8.4).
Table 8.9 provides some guidelines for collection efforts.
Using a Collection Agency
Medical offices and hospitals would not be able to remain in business if patients
didn’t pay their bills for medical care. However, fair collection practices must be
honored.
Professional collection agencies are available when all other attempts to collect
unpaid bills fail. The account should always be reviewed with the physician or head of
the medical practice before turning it over for collection.
After the patient is told the account is going to a collection agency, it must, by
law, go. After the account has been turned over, no further collection attempts can be
made by the physician’s office or hospital—that would be considered harassment. If the
patient should contact the office or hospital after the account has been turned over for
collection, the patient should be referred to the collection agency.
FIGURE 8.4 Collection Calls Are Made Between
8:00 am and 9:00 pm
CHAPTER 8 Workplace Law and Ethics 201
Bankruptcy
When patients become unable to pay their debts, they may file for bankruptcy. Bank-
ruptcy is a legal method for providing some protection to individual debtors who
owe money by establishing a fair method for distribution of the debtor’s assets to all
the creditors. If a patient files for bankruptcy, a court-appointed trustee may place the
patient’s assets in a special fund. The trustee then distributes the funds according to
a predetermined method. After a debtor files for bankruptcy a creditor, one to whom
money is owed such as a physician who has an outstanding debt owed by the patient,
may no longer seek payment from the patient. Instead, the creditor must file a claim in
bankruptcy court at a later date.
• Establish policies and procedures relating to collections and instruct all staff on these procedures.
• Have a list of the established fees available for patients and staff.
• Discuss the fee, and when the fee is due, with the patient before treatment.
• Prepare written material for patients that includes general information about the office, such as
office hours and emergency numbers to call when the office or facility is closed. Include information
about the billing process and how insurance claims are handled.
• Request payment, whenever possible, before the patient leaves the office or health care facility.
• Be consistent in all billing practices. This includes sending statements to arrive on the first of each
month and sending a follow-up letter on delinquent accounts when they reach a certain date, such
as one month overdue.
• Use care when making telephone collection calls:
• Always be courteous when speaking to patients.
• Always introduce yourself. Make sure the patient understands the reason for the call. Do not
misrepresent yourself by implying you are someone other than who you are.
• Make all calls on weekdays between 8:00 am and 9:00 pm, observing the time difference for
patients living in another time zone.
• Protect the patient’s privacy. Carefully identify the person accepting the telephone call. Do not
discuss a delinquent account with anyone except the patient (debtor). Do not leave a message
on a telephone answering machine.
• Never threaten an action that you do not intend to take. For example, do not tell the patient
that the account will be handed over to a collection agency if payment is not received by this
afternoon.
• Try to establish a payment plan to get a commitment from the patient on when a full or partial
payment can be made.
• Do not harass, threaten, or intimidate the patient (debtor).
Table 8.9 Guidelines for Collection Efforts
Med Tip
Personnel involved in the billing and collections operations of any facility must have a full
understanding of the laws regulating the collection process.
Med Tip
A creditor who fails to comply with bankruptcy laws, such as by harassing the debtor, can
be cited for contempt of court.
Federal Wage Garnishment Law of 1970
Garnishment refers to a court order that requires an employer to pay a portion of
an employee’s paycheck directly to one of the employee’s creditors until the debt is
202 PART 2 The Health Care Environment
resolved. The Federal Wage Garnishment Law restricts the amount of the paycheck
that can be used to pay off a debt.
Claims against Estates
When a patient dies, a bill should be sent to the estate of the deceased. It is important to
follow up with the collection of bills to prevent the impression that the physician was at
fault in the patient’s death. There is generally a specific time limit allowed when filing
a claim against an estate. The probate department of the superior court in the county
that is handling the estate can provide information on the time limits and also the name
of the administrator of the estate.
The Statute of Limitations
This statute defines how long a medical practice has to file suit to collect on a past-
due account. Because the time limit varies from state to state, an attorney should be
consulted to determine the particular state’s law. If an aging account is more than
three years old, the creditor should investigate the state’s statute of limitations before
spending time, effort, and money to collect the debt. Because there is a statute of
limitations on collecting a debt, it is important to attempt any debt collection as soon
as possible.
Med Tip
Misplaced or improper loyalty to a company or employer may lead a person to form
rationalizations for wrongdoing, such as:
• “I was just trying to save the company money.”
• “My boss made me do it.”
• “We have to do it in order to compete.”
• “No one will find out.”
• “It’s not really illegal.”
Chapter Review
Points to Ponder
1. Why did the federal government enact laws such as
Title VII, the ADA, and COBRA?
2. How do you respond to an illegal interview question?
3. Isn’t it important for an employer to know if a
potential employee has a disability? Why or why not?
4. In your opinion, does the Family and Medical Leave
Act of 1994 discriminate against working persons
who do not have children or elderly parents?
5. Are you entitled to take off a couple of days to
reenergize yourself if you do not use up all of your
sick days during the year?
8
CHAPTER 8 Workplace Law and Ethics 203
Discussion Questions
1. Identify the principal kinds of illegal discrimination
that result in unequal employment opportunities.
2. What amendments to Title VII are discussed within
this chapter?
3. What are considered potentially infectious materials
under OSHA guidelines?
4. What regulation assists terminated employees in
obtaining extended health care coverage?
5. What does the Fair Labor Standards Act of 1938
control?
6. Who is eligible to receive a leave of absence under the
Family and Medical Leave Act of 1994?
7. What does ERISA control?
Review Challenge
Short Answer Questions
1. What does the statement “a need to know” mean to
you?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What do the initials EMTALA stand for and who
does this law protect?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. As a health care worker, is it legal for your employer
to ask you to provide a urine sample for a drug test?
Why or why not?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. Under what federal regulation(s) are deaf children
offered interpreters?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. Give examples of efficiency and effectiveness. Why is
effectiveness more important?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What does the term “just cause” mean?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What are six illegal interview questions?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Discuss the Fair Pay regulation under FLSA and
what it means for overtime payments to health care
employees such as RNs and LPNs.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
204 PART 2 The Health Care Environment
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. creditor
_____ 2. preempt
_____ 3. vesting
_____ 4. discrimination
_____ 5. just cause
_____ 6. employment-at-will
_____ 7. OSHA
_____ 8. ADA
_____ 9. Title VII
_____ 10. debtors
COLUMN B
a. Civil Rights Act of 1964
b. Occupational Safety and Health Act
c. having a legal reason
d. overrule
e. one who owes money to another
f. one to whom a debt is owed
g. unfair treatment
h. employee gains the rights to receive benefits
i. Americans with Disabilities Act of 1990
j. employment can be terminated
Multiple Choice
Select the one best answer to the following statements:
1. In most cases, federal laws
a. are better than state laws.
b. are not followed as closely as state laws.
c. preempt state laws.
d. are used when state laws are not effective.
e. none of the above.
2. Title VII of the Civil Rights Act of 1964 prohibits
discrimination based on
a. color, race, and national origin.
b. religion.
c. gender.
d. income level and education.
e. a, b, and c only.
3. The following acts are covered as amendments under
Title VII with the exception of the
a. Pregnancy Discrimination Act of 1978.
b. Drug-Free Workplace Act of 1988.
c. Equal Employment Opportunity Act of 1972.
d. Civil Rights Act of 1991.
e. Age Discrimination in Employment Act of 1967.
4. The Occupational Safety and Health Act (OSHA)
developed standards in 1991 stating that infectious
materials include
a. any unidentified body fluid.
b. amniotic fluid.
c. saliva in dental procedures.
d. cerebrospinal fluid.
e. all of the above.
5. The most important act covered under compensation
and benefits regulations is said to be the
a. Workers’ Compensation Act.
b. Social Security Act of 1935.
c. Federal Insurance Contribution Act of 1935.
d. Fair Labor Standards Act.
e. Family and Medical Leave Act of 1994.
6. Regulation Z of the Consumer Protection Act is also
referred to as
a. Equal Credit Opportunity Act of 1975.
b. Fair Credit Reporting Act of 1971.
c. Truth in Lending Act of 1969.
d. Employee Retirement Income Security Act of 1974.
e. Workers’ Compensation Act.
7. When making a claim for payment after a patient has
died, the claim (or bill) must be
a. sent in the name of the deceased person to his or
her last known address.
b. sent to the administrator of the estate of the
deceased person.
c. sent to a collection agency with specific
instructions to collect the payment from the
next of kin.
d. waived.
e. none of the above.
CHAPTER 8 Workplace Law and Ethics 205
8. When using a collection agency to collect outstanding
debts (unpaid bills) from a patient,
a. allow the collection agency to continue pursuing
collection.
b. stay closely involved in the process and make
frequent follow-up phone calls to the delinquent
patient.
c. it is wise to first threaten the patient that you
will send the unpaid account to a collection
agency and then give the patient a second
chance.
d. review the delinquent account with the physician
or office manager before turning over the account
to the agency.
e. all of the above.
9. ERISA
a. controls employee benefit plans.
b. controls employee pension plans.
c. determines eligibility.
d. determines vesting.
e. all of the above.
10. Under the Workers’ Compensation Act,
a. employers must pay into a fund to help cover
costs when an employee is hurt.
b. the previous employer never has to pay for
workmen’s compensation.
c. Workers’ compensation is only administered at
the federal level.
d. employees may not sue nonemployees.
e. there is a guarantee of receiving a full salary
while on workers’ compensation.
Discussion Cases
1. Analyze “The Case of Janet K. and Epilepsy” (found
at the beginning of the chapter) using the three-step
ethics model (Blanchard-Peale model found in
Chapter 1).
a.
____________________________________________
____________________________________________
b.
____________________________________________
____________________________________________
c.
____________________________________________
____________________________________________
2. You and your friend Rob both work as technologists
in the Medical Imaging Department of the local
community hospital. The department is short staffed,
and Rob agreed to work extra shifts during the past
week to help out. He tells you, “Now I’m taking two
days off as sick days. I’ve earned them, and I need
the rest.”
a. Can your friend use his sick days for this purpose?
____________________________________________
____________________________________________
b. What is your advice to Rob?
____________________________________________
____________________________________________
c. Do you need to do anything else?
____________________________________________
____________________________________________
3. Nancy Moore, a registered nurse, is assisting Dr. Brown
while he performs a minor surgical procedure. Dr. Brown
is known to have a quick temper, and he becomes very
angry if a surgical procedure is delayed for any reason.
As Nancy is handing a needle with suture thread to
Dr. Brown, she feels a slight prick in her sterile gloves.
She tells Dr. Brown about this and explains that she will
have to be excused from the procedure for a few minutes
while she changes gloves. He becomes angry and tells
her to “forget about it and help me finish.”
a. Will it be harmful to anyone if Nancy wears the gloves
during the rest of the procedure, as it was just a slight
prick and the patient’s wound does not appear to be
infected?
____________________________________________
____________________________________________
b. Who is at fault if the patient does develop an infection?
____________________________________________
____________________________________________
c. What recourse does Nancy have if she develops a
bloodborne pathogen infection, such as hepatitis, from
the small hole in her gloves?
____________________________________________
____________________________________________
206 PART 2 The Health Care Environment
d. Is this an ethical or a legal issue, or both?
____________________________________________
____________________________________________
e. Are there any federal regulations that might help
Nancy in the event of an injury or infection? If so,
what are they?
____________________________________________
____________________________________________
Put It Into Practice
Write a letter of application for a position you may wish to seek upon graduation from
your program of study. Submit this letter, along with an updated résumé, to your
instructor for comments. Using Table 8.2 as a guide, review the personal information
you provided in your cover letter and résumé. Have you given any information that
is not required? Are there any gaps in your employment record? If so, why? How will
you answer any of the questions in Table 8.2 if you are asked them during an interview?
Critical Thinking Exercise
What would you do if you overheard your manager state that she didn’t want to hire
a new employee who was 58 years old because it would take too long to train the
person on the electronic medical record system since she was “older and might not
catch on quickly”?
Bibliography
Beaman, N., & L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Black’s law dictionary (8th ed.). 2014. St. Paul, MN: West Publishing.
Brownell, K. 2005. Weight bias: Nature, consequences, and remedies. New
York: Guilford Press.
Lerner, B. (2009). A Life-changing case for doctors in training. New York
Times (March 3), D5, D7.
Perez-Pena, R. 2006. City seeks action against 39 in case of “Nixzmary”
prying. New York Times (September 23), B5.
Precourt, G. 2008. Memo to employees: Your health, our business. Notre
Dame Business (Spring), 14–21.
Puhl, R. 2009. The stigma of obesity. New England Advance for Nurses
(July 31), 39–40.
Schmalleger, F. 2010 . Criminal justice today. Upper Saddle River, NJ:
Pearson/Prentice Hall.
Web Hunt
Search the website of the Occupational Safety and Health Administration Act (www
.osha.org) to find an article that relates to OSHA or workers’ compensation. Summarize
the article.
http://www.osha.org/
http://www.osha.org/
207
Chapter 9
The Medical Record
Learning Objectives
After completing this chapter, you will be able to:
9.1 Define the key terms.
9.2 List five purposes of the medical record.
9.3 List seven requirements for maintaining
medical records as recommended by The
Joint Commission.
9.4 Discuss guidelines for effective charting.
9.5 Discuss what is meant by timeliness of
charting and why it is important in a legal
context.
9.6 Describe ways to protect patient confiden-
tiality that relate to the use of fax, copiers,
e-mail, and computers.
9.7 Discuss the time periods for retaining adults’
and minors’ medical records, fetal heart
monitor records, and records of birth, death,
and surgical procedures.
9.8 Explain 13 guidelines to follow when a
subpoena duces tecum is in effect.
9.9 Describe confidentiality obligations using
electronic medical record keeping.
Key Terms
The Case of Anesha and the Lost Medical Record
Anesha’s 15-year-old daughter, Robin, is experiencing abdomi-
nal pain when exercising during her gym class. After reviewing
the results of several tests, Robin’s pediatrician still cannot deter-
mine the cause of Robin’s abdominal pain. He asks Anesha if
she had any obstetrical problems when she was pregnant with
Robin. Anesha had just read a report in a national newspaper
discussing the use of a hormonal treatment to control bleed-
ing that was used on expectant mothers at about the time that
Anesha was pregnant with Robin. The report stated that female
children could develop serious uterine problems, including
cancer, during their adolescence if their mothers were given
a particular hormone during their pregnancy that was in use
(continued)
Credibility gap
Credible
Disclosed
Doctrine of professional discretion
Electronic health record (EHR)
Electronic medical record (EMR)
Encryptions
Firewalls
Health record
The Joint Commission
Medical record
Microfiche
Open-record laws
Personal health record (PHR)
Privileged communication
Public Health Services Act
Timeliness of documentation
208 PART 2 The Health Care Environment
Introduction
The medical record, also called the health record, is all of the written or electronic
documentation relating to a patient. It includes past history information, current diag-
nosis and treatment, and correspondence relating to the patient. Billing information is
often maintained in a separate accounting record. It is important to remember that the
medical record is a legal document. Various laws cover the reporting, disclosure, and
confidentiality of medical records. Thus, medical record management requires atten-
tion to accuracy, confidentiality, and proper filing and storage. Proper management is
also necessary because the records may be subpoenaed, ordered by the court, during
a malpractice case.
Each patient’s medical record contains essentially the same categories of material
but with information unique to that patient. For example, not every patient has a
consultation report from another physician or a surgical report. The format for the med-
ical record reflects the physician’s specialty. An orthopedic surgeon, for instance, uses
a format that includes questions pertaining to the patient’s mobility and pain level.
Purpose of the Medical Record
Medical records serve multiple purposes. They provide a medical picture and record of
the patient from birth to death. It is an important document for the continual manage-
ment of a patient’s health care and furnishes documentary evidence of the course of
evaluation and treatment. The patient record, which can result from a lifetime of medi-
cal visits, can assist the physician in diagnosing, treating, and tracking the patterns of
the patient’s health. It also provides data and statistics on health matters such as births,
deaths, and communicable diseases. A physician can track the ongoing patterns of the
patient’s health through the medical record. Since 2014, as part of the American Recovery
and Reinvestment Act, federal law requires that all medical records be kept in electronic
format in order to be eligible for Medicaid and Medicare reimbursements (Figure 9.1).
In electronic form, a medical record is known as an electronic medical record
(EMR) or an electronic health record (EHR). Most health care professionals use these
terms interchangeably, but technically there is a slight difference between the EMR and
the EHR that is discussed later in the “Electronic Health Records” section.
Med Tip
Remember that the primary purpose of the medical record or chart is to assist with making
the diagnosis, treatment, and patient care.
15 to 20 years ago. The report went on to state that male children
were unaffected. Anesha recalled that her obstetrician, Dr. C.,
had given her that particular hormone medication to control
bleeding during her pregnancy with Robin and also when she
was expecting Robin’s brother, Sam. Anesha wrote Dr. C. to
request her medical record and ask if the doctor had prescribed
the hormone treatment during her pregnancy. She received
a letter stating that Dr. C. could not recall what he prescribed
15 or 16 years previously. The letter also stated that all his
records were destroyed in a fire five years ago.
1. What should Anesha tell Robin’s pediatrician?
2. What does Robin need to know about her potential for a
serious uterine diagnosis?
3. How could this situation have been prevented?
The medical record is invaluable in an ambulatory health care or hospital setting
as it provides the base for management of the patient’s care, alerts the physicians and
CHAPTER 9 The Medical Record 209
FIGURE 9.1 All Medical Records Must Be Kept in
an Electronic Form
Med Tip
The medical record is a document that records both the care and treatment that a
patient did and did not receive. The terms “medical record” and “medical chart” are used
interchangeably.
staff to patterns and changes in patient responses, and provides data for research
and education.
In addition, because this legal document contains an objective, factual record of a
patient’s medical condition and treatment, either the patient or the physician in a mal-
practice suit may use this information. Finally, the medical record is a legal document
and, as such, should not contain flippant or unprofessional comments.
The medical record serves as an important path for communication between
medical personnel. In a case briefly discussed in Chapter 3, Norton v. Argonaut Insur-
ance Company, the medical record played a key role in documenting a medication
error. A physician prescribed 2.5 mL of Elixir Pediatric Lanoxin, used to treat a heart
condition, to be given orally to the baby by the infant’s mother while the baby was
hospitalized. The doctor increased the baby’s Lanoxin dosage to 3.0 mL and told the
mother about the new dosage. He signed a chart order that read, “Give 3.0 mL Lan-
oxin today for one dose only.” The mother gave the baby 3.0 mL as she was told to do
by the doctor. A nurse, who was not familiar with the fact that the doctor allowed the
mother to give the baby her medication, read the doctor’s order for 3.0 mL of Lanoxin
to be given today. She then gave an injection of the drug to the baby not knowing that
the mother had already administered the dose orally. This overdose of medication
caused the baby’s death. In this case, the parents sued the doctor, the nurse, and the
hospital. In this landmark case, a nurse was held responsible for the infant’s death
because of injecting a potentially lethal dose of a heart medication without ques-
tioning the prescribing physician. The physician’s order was unclear because he did
not state that the mother would administer the 3.0 mL of Lanoxin orally (Norton v.
Argonaut Ins. Co., 144 So. 2d 249, La. App. 1962). The nurse also has a responsibility
for making the proper inquiry if there is any question or uncertainty about an order.
This was a case of negligence.
210 PART 2 The Health Care Environment
Contents of the Medical Record
The medical record contains both personal information about the patient and medical
or clinical notations supplied by the physician and other health care professionals car-
ing for the patient. Personal patient information includes full name, address, telephone
number, date of birth, marital status, employer, and insurance information. The clinical
data or information includes all records of medical examinations, including X-rays,
laboratory reports, and consent forms. The medical record will also contain any cor-
respondence between the physician and the patient such as letters of withdrawal and
consultation reports from other physicians. If a patient has provided informed consent
for a procedure or test that has been explained to him or her, then a record of this expla-
nation and the oral consent must be documented in the medical record.
As a legal document, both the defendant (physician) and plaintiff (patient) in a law-
suit can use the medical record. Because of its importance, some states have passed stat-
utes that define what must be contained in the record. Many of these statutes reflect the
accreditation requirements of The Joint Commission, an agency that oversees hospital
accreditation standards, or Medicare requirements as the minimum standard. Under
these requirements, the medical record must include:
• Admitting diagnosis
• Evidence of a physician examination, including a health history, not more than
seven days before admission or 48 hours after admission to a hospital
• Documentation of any complications such as hospital-acquired infections or unfa-
vorable medication reactions
• Signed consent forms for all treatments and procedures
• Consultation reports from any other physicians brought in on the case
• All physicians’ notes, nurses’ notes, treatment reports, medication records, radiol-
ogy and laboratory reports, and any other information used to monitor the patient
• Discharge summary, with follow-up care noted
The components of a standard medical record are listed in Table 9.1.
Patient’s complete name, address, home and work telephone numbers, Social Security number, birth
date, and marital status
Patient’s past medical history
Dates and times of all medical appointments and treatments
History of present illness
Review of symptoms, reason for appointment
Chief complaints (CC)
Results of physical examination performed by physician
Physician’s assessment, diagnosis, and recommendations for treatment
Progress notes from past visits and treatments
Family medical history
Personal history
Medication history with notations of all refill orders
Table 9.1 Standard Medical Record
Med Tip
Document patient comments such as “I’m all alone” or “I just feel I can’t go on.” Any com-
ments of this nature should be relayed to the physician because they may indicate an emo-
tional problem in addition to the physical one for which the patient is seeking treatment.
CHAPTER 9 The Medical Record 211
Med Tip
In health care today, there is less manual charting and more computer-based charting
(electronic health records [EHRs])
The medical record should never contain irrelevant material—material that is
not related to the patient or the patient’s care. All health care personnel who pro-
vide care must document that care or treatment and then sign their name to the
documentation. EHR systems provide various ways to sign or attest to the identity
of the person who has made an entry. These may be digital signatures, biometric
identifiers (such as a fingerprint), or a secret code or PIN assigned to the individual
entering the information. No personnel may sign any name or provide any other
identifying information other than their own. In addition, not all health care pro-
fessionals will be empowered to chart information on a patient’s medical record.
Table 9.2 provides guidelines for charting.
Treatments
X-ray reports
Laboratory test results
Consultation (referral) reports
Diagnosis
Other patient-related correspondence:
• Informed consent documentation, when appropriate
• Signature for release of information
• Copy of living will
Documentation of all prescriptions and authorization for refill orders
Documentation of dates when the medical record (or portions) is copied, including to whom
it was sent
Documentation of any missed appointments and the subsequent action taken, such as follow-up
telephone calls
Instructions concerning diet, home care, exercise, and follow-up appointments
Hospital clinical records will also include:
• Nurses’ notes (observations by the nursing staff)
• Operative report
• Delivery record
• Anesthesia reports
• Medication and treatment records
• Social service reports
• Physical therapy notes and reports
• Dietary notes and reports
• Fluid intake and output (I & O) charts
• Discharge summary
Corrections and Alterations
Some medical record errors are unavoidable. These might include errors in spelling,
transcription, or inadvertently omitted information or test results. Occasionally, an error
occurs when patient information is written in or added to the wrong chart. It is perfectly
acceptable to correct these errors as long as this is done properly. Nothing should be
deleted. All corrections on paper files should be made by drawing a single line through
the error, writing the correction above the error, dating the change, and then initialing
212 PART 2 The Health Care Environment
• Always double-check to make sure that you have the correct chart.
• If making manual chart entries, use dark ink, preferably black, and write legibly. Printing is preferred
if one’s handwriting is difficult to read.
• The patient’s name and identification number should appear on each page. In manual charting, a
stamping device can be used for this purpose.
• Every entry must be dated and signed by the person making the record. If initials are used, then the
person’s entire signature must be either in the medical record or on file in the medical office or insti-
tution. The electronic health record system will provide a method of adding an electronic signature
or other identifier. No one can sign for anyone else.
• Entries should be brief but complete.
• Use only accepted medical abbreviations known by the general staff.
• Correctly spell all medical terms.
• Never erase or use a liquid eraser, or in any way remove information from a manual medical record.
To make a manual record correction, draw a single line through the error, write the correct infor-
mation above it, and date and initial the change. Electronic health record systems will provide a
method for making corrections without obliterating the original entry, dating the correction, and
identifying the person who has made the correction.
• Never leave spaces for someone to add later charting.
• Document all telephone calls and correspondence relating to the patient.
• Document all action(s) taken as a result of telephone conversations.
• Document all missed appointments.
• Document all incidents of noncompliance.
• Document all patient education.
• Do not record any personal opinions, speculations, or judgments.
Table 9.2 Guidelines for Charting
Med Tip
Use only black or blue ink when manually charting or making a medical record entry. Never
use pencil or colored ink pens.
it. Do not erase or use correction fluid. The original statement or error should never be
obliterated. Many health care professionals will also note in the margin of the record
why the change was made, as for example, “incorrect chart.” No changes to a patient’s
chart should ever be made after a reasonable period of time following discharge.
EHR corrections are handled very differently from paper record corrections. Each
facility, depending on its software program, will have its own guidelines, or protocol,
for correcting errors. One example occurs when an addendum, or revision, must be
added after the date of the original entry. For example, in a medical office, if a patient
is unable to provide a urine sample on the day of his or her exam but brings one in the
following day, a CMA or RN can draft a temporary revision or addition to the medical
record, such as a test result, along with the notation “revision” and their name. The phy-
sician, who is the only authorized person, in this case, to permanently add or change
the electronic record, will then go into the program and approve the revision and sign
it, making it a permanent part of the record. Therefore, all needed revisions must be
brought to the attention of the physician when using this software system. Any time
this record is examined the word “revision” will show up. All entries should be double-
checked before transmitting the information. The user should sign off of all electronic
patient records when not in use.
While it is acceptable to make an immediate correction in a medical record, it
should never be altered. In one case, the plaintiff’s attorney waited several weeks after
the defendant was found not guilty and requested the medical record a second time.
CHAPTER 9 The Medical Record 213
Med Tip
It is almost impossible to hide a change in a paper medical record as handwriting, type of
ink, and paper used can all be detected through scientific testing. Electronic systems are
programmed to prevent disguising a correction made after the original information is saved.
He noted that it had been altered after the case was closed. Upon review of the case,
the judge ordered punitive damages.
Falsification of medical records is grounds for criminal indictment. In a New
York case, two orthopedic surgeons performed a procedure on a patient that required
implanting a prosthetic device into the hip joint. The salesman of the prosthetic device
was in the operating room when the patient had to be reopened in order to correct the
placement of the device. One of the surgeons left the operating room to return to his
office and agreed that the salesman could assist the remaining surgeon. The salesman
assisted by removing the prosthesis from the patient and preparing it for the surgeon to
re-implant. The surgeon who left the operating room was sued for malpractice because
the surgical record did not show that he had been replaced with a nonphysician dur-
ing the surgery. The hospital and surgical nurse were also indicted for violating a duty
imposed on them by the nature of their profession (People v. Smithtown Gen. Hosp. 736,
402 N.Y.S.2d 318, Sup. Ct. 1978).
Normal, as well as abnormal or negative, findings should all be noted in the medi-
cal record. Some doctors and staff become hurried and document only the abnormal.
This can result in a problem if the medical record becomes part of a court record. If a jury
does not see a test or procedure documented, then they tend to assume that it was not
done no matter how strongly the physician or health care provider asserts that it was.
Timeliness of Documentation
Medical records must be accurate and timely. Timeliness of documentation means that
all entries should be made as they occur or as soon as possible afterward. Federal reim-
bursement guidelines mandate that all medical records should be completed within
30 days following the patient’s discharge from a hospital. The Joint Commission, an
agency that oversees hospital accreditation standards, also has issued guidelines for
timeliness in charting.
Late entries into the medical chart mean that, even for a brief period of time, the
medical record is incomplete. This can cause a serious problem if the incomplete record
is subpoenaed for a malpractice suit. Any entry made into a medical record after a law-
suit is threatened or filed is suspect. Also, if the medical record is not updated promptly,
there could be a lapse of memory about what actually occurred.
Completeness of Entries
The medical record may be the most important document in a malpractice suit because
it documents the type and amount of patient care that was given. If the medical record
is incomplete, the physician or other health care provider may be unable to defend
allegations of malpractice, even if there was no negligence. For instance, in a 1985 Mis-
souri case, a physician ordered that a patient be turned every two hours. The attending
nurses, however, failed to note in the patient’s record when they turned her. The patient
claimed that she had not been turned as ordered and that this caused her to develop
serious bedsores, which led to the amputation of one leg. The nurses presented an
expert witness who testified that in some instances nurses become so busy that they
place the needs of the patient, such as turning, before the need to document. The court
eventually dismissed this case. However, not all such cases are dismissed (Hurlock v.
Park Lane Med. Ctr. Inc., 709 S.W.2d 872, Mo. Ct. App. 1985).
214 PART 2 The Health Care Environment
In a California case, an appeals court ruled that the physician’s inability to provide
the patient’s medical record created the inference of guilt (Thor v. Boska, 113 Cal. Rptr. 296,
Ct. App. 1974). This is an example of a situation in which the physician may not have been
at fault. However, the fact that he was unable to provide any documentation about his
treatment of the patient meant that even at the appeals court level, he did not win his case.
Med Tip
The medical record is a legal document and, as such, can be subpoenaed into court as
evidence in a malpractice case.
Med Tip
Remember that in the eyes of the court, if it’s not documented, it wasn’t done.
Med Tip
Opinion and speculation do not belong in the medical record. Statements such as “It
appears the mother hit the child,” while based on physical evidence, are not acceptable in
the medical record. In this case, it is correct to describe the injury and the child’s statement.
Med Tip
Anyone processing medical billing records must be conscientious about the accuracy of
names, dates, and services rendered. Careless documentation for claims of insurance
payments can result in physicians being brought up on charges of fraud.
Credibility of the Medical Record
According to Webster’s dictionary, for something to be credible it must be believable or
worthy of belief, trustworthy, and reliable. This is asking a lot of brief statements writ-
ten in a medical record. However, credibility is exactly what is necessary for everyone,
including lawyers, to acknowledge that the medical record is an accurate picture of
what happened to the patient. A credibility gap exists if there is an apparent dispar-
ity between what is said or written and the actual facts. This gap results in a failure to
accept one’s statements as factual, or a person’s professed motives as the true ones. For
example, if a hospital record concerning a patient’s fall from a hospital bed includes an
inserted statement such as “side rails were up,” a lawyer and jury may believe other-
wise. If X-rays or other important medical records are missing, an assumption may be
made that this was purposely done to hide something. Even a documented fire or flood
can cause a credibility gap to occur, such as in the case of Anesha and the Lost Medical
Record at the beginning of this chapter.
One physician may be asked by an attorney to review a medical record pertaining
to a medical malpractice case of another physician to help determine if there is evidence
of malpractice. The second physician will be looking for gaps or other problems with
the record such as illegible handwriting, delays in placing X-ray and laboratory reports
into the file, altered records, or any contrived or invented documentation. Medical
records are frequently examined during Medicaid or Medicare fraud cases in which a
physician has falsely claimed payment for services that were never rendered.
CHAPTER 9 The Medical Record 215
Ownership of the Medical Record
State statutes may establish who owns the medical records. In most states, the general
rule is that the physician or owners of a health care facility, such as a hospital or nursing
home, own the medical records, but patients have the legal right of privileged commu-
nication (confidential information told to their physician) and access to their medical
records. Therefore, patients must authorize release of their records in writing. Patients
also have a right to see their records, whether written or electronic, and to request a
copy of those records. Because some records are large and require duplicating time and
expense, the physician or institution may charge for this service.
Patients have the right to expect that accurate medical records will be recorded and
maintained in a safe manner. In some cases, such as for a patient with mental health prob-
lems, it may cause harm to the patient if they read their own records. Under the doctrine
of professional discretion, a physician may determine, based on his or her best judgment,
if the patient with mental or emotional problems should view the medical record.
Because the medical record is a written or electronic documentation of the contract
established between the physician or health care provider and the patient, it must be
retained for legal purposes. There is often a need for a health care provider, such as hospital
personnel and consulting physicians, to view a patient’s medical record. However, when
the need no longer exists, then the right to view the medical record, or access to it, stops.
Confidentiality and the Medical Record
To protect patient confidentiality, medical records should not be released to third par-
ties without the patient’s written consent. If an attorney obtains a subpoena for the
medical records, only the specific records that are requested, such as the surgical notes,
should be copied and sent. For example, the fact that a patient is HIV-positive or has
been seen in an emergency department after an auto collision may have no bearing on
a malpractice suit relating to a surgical procedure.
Med Tip
Many health care facilities require all employees to sign a confidentiality agreement. Failure
to honor this agreement can result in dismissal and possible legal action.
Taking photographs or other visual images of patients, such as videotapes, without
the proper patient consent is an invasion of the patient’s privacy. The patient must sign
an authorization form in order for photos and films, such as mammograms and digital
or radiographic images, to be used or released outside of the medical facility. Confiden-
tial material should not be transmitted by fax. A fax transmission is not acceptable when
an original is required. Guidelines for maintaining patient confidentiality when using a
fax machine, copy machine, e-mail, or computer are listed in Table 9.3.
Release of Information
Records should not be released to the patient without the physician’s knowledge and
permission. The information contained in the record can be upsetting to some patients
without the proper explanation. Insurance companies often have a desire to examine
the medical records before they issue a reimbursement for a procedure. If the patient
personally receives the records, then he or she must sign a release form. Only the spe-
cific information that is requested, not the entire medical chart, should be sent to the
insurance company.
216 PART 2 The Health Care Environment
Fax Machines
• Send patient information via fax only when absolutely necessary.
• Verify the fax telephone number of the receiver before sending the fax.
• Make sure the intended receiver is there before sending confidential records by fax.
• Shred confidential fax papers that are no longer needed. Do not place them in the trash.
• Use a fax cover sheet that states “Confidential. Please return if received in error.”
• Only fax the specific documents requested, not the entire medical record.
• Do not leave confidential material unattended on a fax machine.
• Ideally, the fax machine should be located in a restricted access area.
Copy Machines
• Never leave medical records unattended on a copy machine where others may read them.
• Shred all discarded copies.
• Be diligent about removing all papers caught in a paper jam.
• Do not print confidential medical information on a printer that is shared with another department
or person.
• Avoid using e-mail to send confidential information.
• Do not allow other patients or unauthorized staff members to view a computer screen with confi-
dential patient information.
• Screen savers should be used to prevent confidential patient information being viewed by others.
• Computer screens should be out of view of the general public.
• Passwords should be changed on a regular basis and not shared with others.
Table 9.3 Maintaining Patient Confidentiality When Using Fax (Facsimile) Machines,
Copy Machines, or E-mail
Med Tip
An original version of a medical record should never be sent to a patient. A copy should
be made of the original, and the copy sent to the patient who has requested the record
in writing. In the case of X-ray film, the physician or institution may allow the original to be
sent, with the stipulation that it be returned. Document when and where the file was sent.
Med Tip
Because the patient does have a legal right to his or her medical record, it is never accept-
able to refuse to turn over a copy on the grounds that the patient has not paid his or her bill.
In addition, patients must always sign a release form when they request to have
their medical records and films sent to another physician. This often occurs when the
primary care physician (PCP) has requested that the patient have a consultation with
another physician.
In general, only a patient can authorize the release of his or her own medical
records. However, there are some exceptions to the rule, which include:
• Parents of minor children
• Legal guardian
• An agent (someone the patient selects to act on his or her behalf in a Health Care
Power of Attorney)
Under some circumstances, such as with an emancipated minor, the minor and not
the parent must sign the release.
CHAPTER 9 The Medical Record 217
State hospital licensing regulations typically stipulate that the medical record is
the property of the hospital and should not be removed from the premises unless there
is a court order. Under the law, access to mental health records is more limited than is
access to general medical records. See Chapter 10 for a further discussion of release of
patient information under HIPAA regulations.
Med Tip
Never send the entire medical chart unless it is requested. Send out only the exact material,
or portion of the medical record, that is requested.
State Open-Record Laws
Some states have freedom of information laws, called open-record laws, that grant
public access to records maintained by state agencies. However, medical records are
generally exempt from this statute, so the public cannot obtain such information. In
some cases, though, if the private patient’s interest in confidentiality is outweighed by
the benefit of disclosure for the public interest, then disclosure is allowed. For example,
in the case of Child Protection Group v. Cline, the court allowed personal information
about a bus driver’s psychiatric records to be disclosed, or made known, to parents of
schoolchildren when there was a concern that he would not be able to drive the school
bus safely (Child Protection Group v. Cline, 350 S.E.2d 541, W. Va. 1986).
Alcohol and Drug Abuse Patient Records
The Public Health Services Act protects patients who are receiving treatment for drug
and alcohol abuse. Any person or program that releases confidential information relat-
ing to these patients is subject to criminal fines. Hospitals maintain a patient registry
at their switchboard or front desk, but they cannot divulge that a patient with drug or
alcohol abuse problems is even a patient at their facility.
An exception to this disclosure of information law would be if the patient should
require emergency care that would necessitate divulging the abuse problem.
Retention and Storage of Medical Records
Each state varies on the length of time for which medical records and documents must
be kept. It also varies by state depending on whether it is the record of a minor or adult.
However, most states require that medical records should be stored for 10 years from
the time of the last entry. These requirements apply to both paper medical records and
electronic health records. Most physicians store medical records permanently because
malpractice suits can still be filed within two years from the date that the occurrence or
alleged malpractice event became known.
Using the statute of limitations as a guide for retaining records, the medical record of
a minor would be kept until the patient reaches the age of maturity plus the period of the
statute. As an example, in a state where the age of maturity is 21 and the statute of limita-
tions for torts is two years, the retention period for a newborn’s record would be 23 years.
Med Tip
Remember that the statute of limitations can be extended for many reasons. It is always
better to err on the side of retaining medical records too long, rather than not long enough.
Check your own state to determine the statute of limitations for record keeping.
218 PART 2 The Health Care Environment
Because of limited storage space, paper medical records may have to be destroyed
after a period of time has elapsed. State laws should always be checked before destroy-
ing any records. The courts take the requirement to retain records seriously. An Illinois
appeals court declared that a patient could sue when a hospital failed to retain her X-rays
(Rodgers v. St. Mary’s Hospital, 556 N.E.2d 913, Ill. App. Ct. 1990). In a Florida case, a
woman whose husband died during the administration of anesthesia was unable to
present expert testimony because her husband’s anesthesiology records were missing.
The court ruled that she could sue the hospital because it was the hospital’s duty to
make and maintain medical records (Bondu v. Gurvich, 473 So. 2d 1307, Fla. Dist. Ct. App.
1984). Table 9.4 describes time period recommendations for retaining medical records as
adopted by the American Health Information Management Association (AHIMA).
In the event that a physician cannot retain patients’ records beyond a 10-year time
frame, there are certain considerations for the methods of destruction:
• Maintain careful records relating to when a record can be destroyed.
• Designate a person to be responsible for deciding, based on established policies,
what records to keep and what to purge.
• Define which records are kept on-site and which are off-site.
• Maintain a log that details which records have been destroyed, as well as when
and how this was done.
• Provide a method for disposal (e.g., shred, pulp, or incinerate) that destroys all
information in the record. Some facilities hire a service that handles the destruction
of medical records. This service must abide by HIPAA guidelines. (See Chapter 10
for HIPAA.)
Storage
Records of current patients are usually kept within the physician’s office for easy
access. Older records of former patients do not need to be kept in the office where
they will take up valuable space. Physicians often rent storage space. It is important
to use a clean, dry warehouse space for storage. If records that are needed in court
have been destroyed in a warehouse fire or flood, the court may believe that it was a
deliberate attempt by the physician to avoid the truth. Some physicians hire a service
to place all their records on microfiche, which results in a space-saving, miniaturized
film of the medical record.
Electronic Health Records
For many years medical records were paper records maintained by the health care
provider or providers. This meant that, as a patient relocated, large amounts of paper
Adult patient records Ten years after the most recent encounter
Minor’s health records Age of maturity plus statute of limitations
Fetal heart monitor records Ten years after infant reaches maturity
Medicare and Medicaid records Five years
Register of birth Permanently
Register of death Permanently
Register of surgical procedures Permanently
Immunization records Permanently
Chemotherapy records Permanently
Table 9.4 Time Periods for Retaining Medical Records
CHAPTER 9 The Medical Record 219
records would be filed and maintained in numerous medical facilities for just that one
patient. The historical paper records of a patient can now be scanned or otherwise
brought onto an electronic system. This has the advantage of making them more readily
accessible to the health care providers.
Med Tip
Today, most medical records are maintained electronically. This provides for greater effi-
ciency, improved accuracy, and easier storage. However, the previous paper medical
records must still be retained in accordance with legal requirements.
As noted earlier, the electronic health record, also referred to as an electronic medi-
cal record, in which all patient-related data are computerized into one record, is an
electronic or digital documentation of a patient’s medical history. It is maintained
by the health care provider and includes the clinical information relative to the
patient’s care. The distinction between an EHR and an EMR is that an EMR is a
digital version of the paper charts in a clinician’s office that contain the medical and
treatment history of one patient in one practice. EHRs do all that EMRs do and more.
EHRs focus on the total health of the patient and are meant to share information
with other health care providers. They contain information from all the health care
providers involved in the patient’s care. EHRs may also contain statistical informa-
tion about multiple patients.
EHRs, to improve patient care, can:
• Make health information more available, reduce delays in treatment, reduce
duplication of tests, and assist patients in being better informed about their
health.
• Provide better organization and accuracy of patient information.
• Reduce the incidence of medical error by improving the accuracy and clarity of
medical records.
• Bring information relating to the patient’s health into one place.
• Contain information about a patient’s medical history, such as diagnoses, medica-
tions, allergies, laboratory data and test results, radiology reports, past medical
history, vital signs, immunizations, progress notes, and treatment plans, as well as
any health care problems.
• Be created, managed, and consulted by authorized medical providers.
• Have the ability to provide “real-time” patient-centered medical records.
Electronic health records allow patient records to be modified, authenticated,
stored, and retrieved by the computer. A key feature is that it can be consulted by
authorized providers and staff across more than one health care organization. This has
made record maintenance and retrieval much more efficient and effective in medical
offices, clinics, laboratories, and hospitals. However, it has resulted in increased con-
cerns about patient privacy as so many more health care professionals may now be
able to view a patient record unless precautions are taken. A well-designed computer-
ized system may offer better protection than a “file-drawer” storage system because
there are passwords, encryptions (scrambling and encoding information before send-
ing it electronically), and the use of firewalls (software to prevent unauthorized users)
to maintain security.
As part of the American Recovery and Reinvestment Act, all public and private
health care providers and other eligible professionals (EP) were required to adopt and
demonstrate “meaningful use” of EHRs by January 2014, in order to maintain their
220 PART 2 The Health Care Environment
existing Medicare and Medicaid reimbursement levels. “Meaningful use,” as defined
by HealthIT.gov, consists of using digital medical and health records to:
• Improve quality, safety, and efficiency and reduce health disparities.
• Maintain privacy and security of patient health information.
• Improve care coordination.
• Engage patients and families in their health care.
Confidentiality obligations apply to all methods of record keeping. With a com-
puter-based system, it is even more important to be diligent in protecting the patients’
rights because more people now have access to the computerized records. Special safety
measures should be taken, such as establishing personal identification and user verifica-
tion codes for access to records. Computer-based records should be accessed only on a
need-to-know basis. Not everyone in a health care facility should have authorization
to pull up patient records on the computer screen.
Storage space is not a problem for electronic health records, which are generally
stored digitally in a secure computer database maintained by the organization or health
care system to which the medical practice belongs.
Med Tip
Security is an ever-present concern with electronic medical records. For example, the
computer should not be left on when the patient is alone in an exam room. In addition,
computer “hackers” can often access and change information that is not protected with
tight security systems such as firewalls.
Med Tip
Ideally, a personal health record will have a summary of an individual’s health and medical
history based on data from many health care sources, including information that is entered
by the individual patient.
Personal Health Record
A personal health record (PHR) is a record of information, often in the patient’s own
words, that is controlled by the patient or the patient’s family. This personal health record
may be shared with caregivers and family members. This allows the family members and
health care providers to have a record of the patient’s medical history. A PHR provides
family members and caregivers with accurate, current information to assist them in caring
for the patient and making decisions for further medical care and treatment.
The PHR may include:
• Person(s) to notify in case of an emergency
• Names and phone numbers of your personal physician, optometrist, and pharmacist
• Copies of advance directives
• Allergies
• Immunizations
• Current prescription medications
• Over-the-counter medications
http://healthit.gov/
CHAPTER 9 The Medical Record 221
• Health insurance information
• Organ donor authorization
• Eyeglass prescription
• Important events in your personal and family medical history
• Important test results, such as EKGs, MRIs, and X-rays
Loss of Medical Records
As Anesha’s case at the beginning of this chapter indicates, the loss of a medical record
can be a frustrating and even a harmful experience for all those involved. It can even
result in a deadly outcome if vital information relating to the patient is gone. Whether
a medical record is lost through careless filing of the record or as a result of a deliber-
ate attempt to prevent litigation, it is always preventable. There are many safeguards
that a medical office, clinic, and even a hospital can implement to prevent the loss of a
record (Figure 9.2):
• All records removed from files should be listed in a journal. The person to whom
the file was given and the date should be recorded.
• Place some indication in the file cabinet or EHR that a file has been removed. Many
offices use a color-coded insert to alert personnel about the file removal.
• If possible, designate one person responsible for maintaining a list of all records
removed from files. That person then collects all files and returns them to the
proper location.
• Placing all medical records on microfiche is an excellent way to safeguard against
record loss. The microfiche can be “backed up” with a duplicate film that is kept
in a safe, fireproof area.
Juries tend to be unsympathetic in a court case that revolves around a lost medical
document or record. For example, during the discovery phase in the case of Keene v.
Brigham & Women’s Hospital, the plaintiff was told that the hospital had lost his medical
records. A default judgment for the plaintiff was entered at the appeals court level and
upheld at the Supreme Court level. The courts maintained that, without the medical
record containing evidence relating to the medical malpractice claim against the hos-
pital, it was impossible to make a determination of guilt or innocence of the defendant
(Keene v. Brigham & Women’s Hosp., Inc. 439 Mass. 223, 2003).
FIGURE 9.2 Medical Assistant Uses a Laptop
Computer for Bedside Charting
222 PART 2 The Health Care Environment
Reporting and Disclosure Requirements
State laws require the disclosure of some confidential medical record information, such
as birth and death records, without the patient’s consent. These items are discussed in
Chapter 7 under public duties of the physician.
Med Tip
Laws regarding medical records vary from state to state. Health care professionals who
have any involvement with the medical record should learn what the statutes in their own
state require.
Med Tip
Ordinarily, a medical record cannot be sent to anyone without consent in writing from the
patient and the physician’s approval. One exception to this is when a record is subpoenaed.
Use of the Medical Record in Court
Improper Disclosure
Health care providers and institutions such as hospitals and clinics may face civil and
criminal liability for releasing medical records without the proper patient authoriza-
tion. Private citizens can institute a civil lawsuit to recover damages if their records
are released inappropriately. Wisconsin statutes provide for compensatory as well as
punitive damages for improper disclosure (Wis. Stat. § 252.15(8)). Many of the cases
that have been tried for improper disclosure relate to HIV and AIDS patients. While
disclosure of a patient’s HIV and AIDS status to the health department is required by
state statute, disclosure to any other person or organization is not allowed.
Subpoena Duces Tecum
A subpoena duces tecum (Latin for “under penalty, take with you”) is a written order
requiring a person to appear in court, give testimony, and bring the particular records,
files, books, or information that are described in the subpoena. The court issues a
subpoena for records that document patient care and, in some instances, billing and
insurance records. The purpose of issuing a subpoena for a patient’s medical record
is to receive written evidence of the patient’s medical condition and the care that was
received. All copying costs associated with subpoenaed records must be borne by the
attorney requesting the subpoena.
A local sheriff or federal marshal often serves a subpoena, but many state statutes
allow anyone over the age of 18 to serve a subpoena. The subpoena may be served either
by certified mail or in person, depending on the state requirement.
In general, only the person who is named on the subpoena can accept it. The sub-
poena can then be said to “have been served.” In some cases “a conservator of the
record,” such as a medical records administrator, is authorized to accept a subpoena on
behalf of a health care facility or a physician. Before accepting a subpoena, the person
accepting the subpoena must make sure to check that the name of the attorney and the
court case number are on the subpoena. In addition, they must check to make sure that
the physician named on the subpoena saw the patient.
CHAPTER 9 The Medical Record 223
When a record, such as a medical file or chart, is subpoenaed, only the parts
of the record requested should be copied and provided to the requesting attorney.
Unless the original document is subpoenaed, a certified photocopy may be sent. If
the original record is subpoenaed, a photocopy is marked COPY and placed in the
file along with a note about the location of the original copy. Until the original is
returned, a receipt for the subpoenaed record should be placed in the file, and the
patient or the patient’s attorney should be notified that the record has been sub-
poenaed. Any notice relating to subpoenaed records should be sent to the patient
by certified mail.
If a medical record has been subpoenaed, or requested by the court, certain guide-
lines should be followed:
• Notify the physician that a subpoena has been received. In most cases, a subpoena
has to be personally served to the person named on the document. In the case of an
institution, such as a hospital, a “custodian of the record” such as a hospital records
administrator will be appointed to receive a subpoena for hospital medical records.
• Notify the patient that his or her record has been subpoenaed. If the patient is rep-
resented by an attorney and suing the physician, then the physician and his or her
staff cannot contact the patient except via the attorney.
• Notify the physician’s attorney that a subpoena has been received.
• Verify that all the information on the subpoena is correct. Pay particular attention to
identification numbers such as the Social Security number. In some cases, patients
may have the same name, and a subpoena is sent to a physician in error.
• Carefully make sure that the requesting attorney’s name and phone number as well
as the court case (docket) number are listed on the subpoena.
• Review the records to make sure that all the records requested are available. No
attempt should be made to alter, delete, or add any information to the record.
• Make sure that a copy of the medical record is acceptable. In some cases, only the
original record will be accepted. Most physicians do not want their original records
to leave their possession.
• Photocopy the original record and number all the pages. Place the total number of
pages on the front of the file folder. Prepare a cover list of the contents and place
that in the file folder along with the medical documents.
• Turn over only the specific materials that have been requested.
• If an EHR is requested, send a labeled disc containing only the requested material.
• After the medical record materials relating to the subpoena have been compiled,
lock the file in a secure place.
• Turn the records directly over to the judge on the due date. The materials should
not be left with a clerk or receptionist.
• The health care professional who takes the records to court should be prepared to
be sworn in to make the records admissible as evidence.
• Check with the court to make sure that the trial date is the same as the date listed
on the subpoena.
Med Tip
Particular care should be taken when using a fax transmission of a medical record. The
sender should be assured by the person receiving the fax that the machine is located in a
restricted area. Confidential material should generally not be transmitted by fax, and a fax
transmission is not acceptable when an original document is requested.
224 PART 2 The Health Care Environment
Chapter Review
Points to Ponder
1. Do you agree with the statement, “If it’s not docu-
mented, it wasn’t done”? Why or why not?
2. In order to protect your physician/employer, should
you “hide” to avoid receiving a subpoena duces
tecum? Why or why not?
3. As a health care professional, are you permitted to
read the medical record of a person you know? Why
or why not?
4. Would it be helpful to other health care professionals
who will be using the same patient’s medical record
to document that patient’s poor attitude by including
a statement such as “bad attitude?” Why or why not?
5. Can you be liable if you or your staff lose or delete a
patient’s medical record?
6. A patient requests her physician’s office to change her
diagnosis in her medical record from R/O (rule out)
bladder infection to “bladder infection,” because her
insurance will not pay for an R/O diagnosis. Should
the record be changed?
9
Discussion Questions
1. What is the significance of the medical record for the
physician? For the health care professional? For the
patient?
2. Who owns the medical chart?
Review Challenge
Short Answer Questions
1. How long should a medical record be kept for a one-
year-old child who resides in a state with a statute of
limitations of two years for a tort offense?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What does a subpoena duces tecum request the sub-
poenaed person to provide?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. Exactly what does “timeliness in documentation”
mean?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What are some of the precautions to follow when
using electronic health records?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What would you say to a patient who demands his
digital image and says, “It’s my digital image. I paid
for it”?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
CHAPTER 9 The Medical Record 225
6. What is the doctrine of professional discretion?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What are some examples of a “custodian of the record”?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Who can serve a subpoena?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
9. Explain the precautions that must be taken when fax-
ing medical records.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
10. Explain the precautions that must be taken when
using a computer in a medical setting.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. firewall
_____ 2. credible
_____ 3. disclosed
_____ 4. The Joint Commission
_____ 5. microfiche
_____ 6. privileged communication
_____ 7. EHR
_____ 8. timeliness
_____ 9. encryptions
COLUMN B
a. made known
b. scrambling and encoding information before sending it
electronically
c. electronic health record
d. software to prevent unauthorized users
e. an agency that oversees hospital accreditation standards
f. reliable
g. miniaturized photographs of records
h. no late entries on medical chart
i. confidential information that has been told to a physi-
cian (or attorney) by the patient
Multiple Choice
Select the one best answer to the following statements.
1. Medicare and Medicaid records should be retained for
a. one year.
b. five years.
c. 10 years.
d. the lifetime of the patient.
e. an indefinite period of time.
2. The contents of the medical record include all of the
following except
a. past medical problems.
b. informed consent documentation.
c. patient’s income level.
d. family medical history.
e. none of the above
3. Medical record entries should be made
a. within 60 days of the patient’s
discharge.
b. at the physician’s discretion.
c. after the patient gives consent.
d. as soon as possible.
e. 10 days after the procedure.
226 PART 2 The Health Care Environment
4. The patient
a. has the legal right of privileged communication.
b. owns the medical record.
c. cannot have any portion of the medical record.
d. a and c only.
e. a, b, and c.
5. When correcting a written medical error, one should
a. use a professional brand of error correction fluid
to make the correction.
b. erase the error and make the correction.
c. draw a line through the error, write the correction
above the error, and initial the change.
d. never make any corrections on the medical
record.
e. none of the above.
6. The medical record is legally owned by the
a. patient.
b. physician.
c. state.
d. lawyer.
e. no one.
7. Medical records
a. provide a record from birth to death.
b. provide statistics on health matters.
c. are legal documents.
d. a and c only.
e. a, b, and c.
8. All of the following are guidelines to use when
sending medical records by fax except
a. make sure there is a receiver waiting for the fax.
b. use a cover sheet marked “confidential.”
c. send the entire medical record via fax.
d. do not place the original fax in a trash container.
e. all of the above are correct.
9. An exception, or exceptions, to the open-record laws
in some states is/are
a. psychiatric history.
b. confidential medical record information such as
HIV test results.
c. safety and criminal records of persons involved
in the education of children.
d. all of the above.
e. none of the above.
10. The records of all adult patients should be kept a
minimum of
a. two years.
b. five years.
c. 10 years.
d. 20 years.
e. permanently.
Discussion Cases
1. Mary Smith has been a patient of Dr. Williams from 1985 to
the present time. During that time, she has had three chil-
dren and been treated for a variety of conditions, including
depression in 1986 and herpes in 1990. Mary and her hus-
band, George, have filed for divorce. George wants custody
of the children and is claiming that Mary has a medical con-
dition that makes her an unfit mother. An attorney, acting on
George’s behalf in the divorce proceedings, has obtained
a subpoena for Mary’s medical records for the years 1995
to the present. Dr. Williams’s assistant, who is a medical
records technician, copies Mary’s entire medical record
from 1985 to the present and sends it to the attorney.
a. What negative effects for Mary might this error cause?
____________________________________________
____________________________________________
b. Is there a violation of confidentiality? Why or why not?
____________________________________________
____________________________________________
c. Do you believe that this is a common or uncommon error?
____________________________________________
____________________________________________
d. Was it appropriate for the assistant to make a copy of
any part of Mary’s medical record?
____________________________________________
____________________________________________
2. Peter B. is admitted to a local hospital emergency depart-
ment (ED) suffering from an anxiety attack. He tells the
ED physician that he is anxious about a job promotion for
which he is being considered. Peter’s secretary is worried
about him and asks her father, Dr. K., who is on the medi-
cal staff at the hospital, to go to the ED and see how Peter
is doing. Dr. K., who is often in the ED, knows all the staff
and they willingly give him access to Peter’s medical record
when he asks for it. Dr. K. calls his daughter to tell her that
Peter is being treated for anxiety with an antidepressant
CHAPTER 9 The Medical Record 227
medication and will probably be discharged. She relays
this encouraging message to Peter’s boss. Peter does not
receive the promotion.
a. Will it be an easy matter for Peter to prove that the ED staff
caused Peter to lose his promotion? Explain your answer.
____________________________________________
____________________________________________
b. What precautions can be taken to avoid giving confi-
dential information to medical personnel who have no
need to see it?
____________________________________________
____________________________________________
c. In your opinion, should a diagnosis of anxiety be a
concern for an employer? Why or why not?
____________________________________________
____________________________________________
d. Note that while the previous case is obviously illegal, it
is based on a true event. Please comment.
____________________________________________
____________________________________________
3. Demi Daniels calls to ask you to change her diagnosis
in her medical record from R/O (rule out) bladder infec-
tion to “bladder infection” because her insurance will
not pay for an R/O diagnosis. In fact, she tested negative
for an infection, but the physician placed her on antibiot-
ics anyway.
a. What do you do?
____________________________________________
____________________________________________
b. Is this a legal question? Why or why not?
____________________________________________
____________________________________________
c. Is this an ethical question? Why or why not?
____________________________________________
____________________________________________
d. What could happen to the physician you work for if you
make a mistake?
____________________________________________
____________________________________________
Put It Into Practice
Request a copy of your medical record from your primary care physician. Examine the
contents to determine how well they document your medical history.
Web Hunt
Using the website of the American Health Information Management Association (www
.ahima.org), provide a description of the organization. Visit the patient resource center
of the site and summarize the statement concerning who owns the medical record.
Critical Thinking Exercise
What would you do if you saw a nurse making a change in a patient’s medical chart
after receiving a subpoena duces tecum for that medical record?
Bibliography
Beaman, N., & L. Fleming-McPhillips. 2015. Comprehensive medical
assisting. Upper Saddle River, NJ: Pearson/Prentice Hall.
Black, H. 2014. Black’s law dictionary (8th ed.). St. Paul, MN: West
Publishing.
Hartley, C., & E. Jones. 2014. HIPAA plain and simple: A compliance guide
for health care professionals. Chicago: AMA Press.
The Joint Commission. 2017. Comprehensive accreditation manual for hos-
pitals. Chicago: Author.
Taber’s cyclopedic medical dictionary (22nd ed.). 2017. Philadelphia: F.A.
Davis.
Yu, Roger. 2012. Doctors can chart their patients verbally. USA Today
(April 16), 1B.
http://www.ahima.org/
http://www.ahima.org/
228
Chapter 10
Patient Confidentiality and
HIPAA
Learning Objectives
After completing this chapter, you will be able to:
10.1 Define the key terms.
10.2 Identify the problems associated with
patient confidentiality.
10.3 Describe the information to which the Pri-
vacy Rule refers and how it applies to your
profession.
10.4 Discuss the purpose of the Health Insurance
Portability and Accountability Act (HIPAA)
of 1996.
10.5 List which entities are affected by HIPAA.
10.6 Discuss the penalties for noncompliance
with HIPAA.
10.7 List the patients’ rights under the Privacy
Standards.
10.8 Discuss the ethical issues concerning infor-
mation technology.
Key Terms
Clearinghouse
Covered entities
Covered transactions
Deidentifying
Electronic health record (EHR)
Electronic medical record (EMR)
Electronic protected health
information (EPHI)
Employer Identification Number
(EIN)
Employer Identifier Standard
Facial recognition technology
Health care plan
Health Insurance Portability and
Accountability Act of 1996
(HIPAA)
Health Information Technology for
Economic and Clinical Health
(HITECH) Act
HIPAA-defined permission
Medical informatics
Minimum necessary standard
National Practitioner Data Bank
(NPDB)
Notice of Privacy Practices (NPP)
Office of Civil Rights (OCR)
Permission
Privacy Act of 1974
Privacy Rule
Protected health information (PHI)
Sanctions
State’s preemption
Telemedicine
Treatment, payment, and health
care operations (TPO)
Voice recognition technology
Wireless local area networks
(WLANs)
CHAPTER 10 Patient Confidentiality and HIPAA 229
Introduction
Patients have two major expectations when they visit a physician’s office or other medi-
cal facility: quality care and confidentiality. They have a right to expect both. However,
with the advent of modern technology, including the Internet, e-mail, fax machines, and
computers, the number of people who have access to patient information has increased
at a rapid rate. In order to address the concern for patients’ privacy, especially via elec-
tronic transmissions, Congress mandated that the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) enforce its privacy provision by April 14, 2003.
This law, while somewhat complicated and expensive for physicians to implement, has
meant more careful attention to issues of patient privacy.
Confidentiality
One version of the Hippocratic Oath states, “What I see or hear in the course of the
treatment . . . , which on no account must be spread abroad, I will keep to myself . . . .”
Historically, physicians were expected to maintain all confidences concerning their
patients, and patients took this confidentiality for granted. However, the image of one
patient sharing his or her medical information with only one physician is no longer
applicable in today’s modern world. A dozen or more physicians may be involved
in a patient’s care along with multiple institutions, including hospitals, MRI testing
centers, rehabilitation centers, and skilled-nursing facilities. Today, there is widespread
use of computerized record keeping and electronic transmission of medical records. For
example, information needs to be transmitted to third-party providers, such as insur-
ance companies, to arrange for payment of the patient’s medical services.
Modern medicine and technology have meant that patient privacy issues have
become of paramount concern among patients, medical professionals, and ethicists.
In many cases, patients have become fearful of admitting to what could be embarrass-
ing information, such as past drug use, abortions, homosexuality, and mental health
problems. When patients fail to convey this information to their physicians, it creates a
difficult environment for the physicians who are treating the patients without benefit
of complete medical information (Figure 10.1).
Confidentiality about sensitive information is necessary to preserve the patient’s
dignity. However, in order to receive payment from third-party payers such as insur-
ance companies, Medicare, and Medicaid, the patient’s diagnosis may have to be
revealed, no matter how embarrassing it is for the patient. But patients want to be
assured that the information relayed about them to a third party is limited to just the
The Case of The New Minister
Dawn is an ordained minister in a little church located in a small
Midwest community. She has had to overcome some discrimi-
nation as the first female clergy member in the town. However,
Dawn feels that her church congregation and other members of
the community have finally started to accept her in this new role.
Dawn was recently diagnosed with irritable bowel syndrome by a
gastroenterologist in the next town. He performed a colonoscopy
on Dawn to rule out cancer of the bowel and found nothing more
than a few benign polyps, which he removed. He told Dawn that
he wanted her to start taking amitriptyline for three months to see
if that would solve her irritable bowel problem. He said that he had
success using this antidepressant, also known as Elavil, to treat
irritable bowel syndrome. He said he would call the prescription
into Dawn’s local pharmacy.
When Dawn went in to pick up her prescription, she met two
members of her congregation who were also picking up their
prescriptions. The pharmacist leaned over the front counter and
said to Dawn, “Do you know that this is an antidepressant?”
1. What rights of Dawn’s were violated?
2. Were any laws broken by the pharmacist’s statement? If
so, what are they?
3. How could Dawn’s reputation suffer from this brief
comment by the pharmacist?
230 PART 2 The Health Care Environment
minimum necessary standard in order to carry out the request. In addition, patients
expect to be told when information about them is being relayed to a third party such
as an insurance company.
Our Right to Privacy
U.S. Supreme Court Justice Louis Brandeis defined our right to privacy as “ . . . the right
most valued by civilized men.” While we realize that much has changed since 1928
when Justice Brandeis wrote these words, we still believe that this is a precious right
that needs to be protected. Our right to privacy is not protected specifically by the Bill
of Rights or any portion of the Constitution. However, many legal scholars believe that
the right to privacy is found in some of the constitutional amendments, such as the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.
There are numerous court cases, creating case law, which defend our constitutional
rights to privacy. These decisions have then become precedent for future cases. Unfor-
tunately, new technology, especially computer data banks, since Justice Brandeis, has
allowed personal patient information to become public. For example, testing for the
presence of drugs and alcohol in some business areas such as transportation and private
industry may infringe on individual rights.
HIV/AIDS and Privacy
There is a great deal of discussion and controversy about the role of privacy for patients
who have HIV/AIDS. HIV/AIDS is not only a threat to the homosexual population,
but also to pregnant women, children, and heterosexual couples. Because this disease
is transmitted through direct sexual contact including rape, as well as through contami-
nated needles and the accidental use of infected blood products, it is now apparent that
the public need information to protect themselves. This information needs to be carefully
communicated in order to protect the privacy rights of the infected individuals. Tennis
champion Arthur Ashe, who contracted AIDS through a contaminated blood transfusion,
FIGURE 10.1 Computer Screen Hidden from
Patient View
Med Tip
Personal and confidential information about patients should be limited to conveying it to
the absolute minimum number of health care employees.
CHAPTER 10 Patient Confidentiality and HIPAA 231
wrote that, “keeping my AIDS status private enabled me to control my life. ‘Going public’
with a disease such as AIDS is akin to telling the world in 1900 that you had leprosy.”
Before his death, he asked “To what extent is my private life not my own?”
The medical community has been conscientious about having patients sign an
approval form granting permission for the release of their medical records. However,
patients’ confidentiality and privacy have become more difficult with the advent of
technologies such as fax transmission, the Internet, and computers in every medical
office. Unfortunately, the creation of new laws has become necessary as a result of the
unethical violation of patients’ privacy.
Privacy Act of 1974, Amended in 1988
The Privacy Act of 1974 provides private citizens some control over information that the
federal government collects about them by limiting the use of information for unneces-
sary purposes. Under this 1974 law, an agency may maintain only the information that
is relevant to its authorized purpose. Additionally, under this law citizens have the right
to gain access to their records and to copy any of the records, if necessary. Under the
Privacy Act individuals were given the right to:
• Find out what information is collected about them by the government
• See and have a copy of that information
• Correct or amend their information
• Exercise control over disclosure of that information
The Privacy Act only applies to federal agencies and government contractors. How-
ever, hospitals that are operated by the federal government, such as Veterans’ Administra-
tion hospitals, are bound by the act to make their records available for public disclosure.
It is sometimes necessary for confidential information to be shared without the
knowledge or consent of the person. Thus, this law also permits federal agencies to
collect, maintain, use, or disseminate any record of identifiable personal information
but only in a manner that assures that:
• Such action is for a necessary and lawful purpose
• The information is current and accurate for its intended use
• Adequate safeguards are provided to prevent misuse of such information
• The information is used only in those cases where there is an important public
policy need that has been determined by a specific statutory authority
Health Insurance Portability and
Accountability Act of 1996, Updated
in 2013
The Health Insurance Portability and Accountability Act (HIPAA) was passed and
signed into law by Congress on August 21, 1996, and fully implemented in 2005. HIPAA
was designed to regulate issues relating to the privacy and confidentiality of patient
health information. This law was an effort to reduce costs of health care and streamline
Med Tip
Always keep in mind that computer screens should never be visible to patients or visitors.
232 PART 2 The Health Care Environment
a fragmented and complicated health care system. The law established a set of national
standards for the protection of health information. This includes identifying privacy
procedures and standards to be used for electronic transmissions as well as for the
storage of health care records.
The rationale for the passage of HIPAA included a concern that health care had
become a complicated and difficult process to understand for many people and insti-
tutions, including businesses. The complexity of billing codes, maintaining numerous
software programs for handling storage of various records, and review board informa-
tion meant that less time could be spent on assessing patient care and delivery needs.
This sweeping reform law affects virtually everyone included in the U.S. health care
system—patients, providers, payers, and intermediaries such as hospitals, medical
offices, pharmacies, and medical device companies.
HIPAA Objectives
HIPAA objectives are to:
• Protect the privacy of health care information
• Improve the portability of health insurance
• Combat fraud, abuse, and waste in health care
• Promote the expanded use of medical savings accounts
• Simplify the administration of health insurance
• Protect the privacy of health care insurance
HIPAA’s Five Titles
The HIPAA act consists of five titles, or main sections, each with its own overall purpose:
• Title I protects health insurance coverage for workers and their families when they
change or lose their jobs.
• Title II—known as the Administrative Simplification provisions—requires national
standards for electronic health care transactions and national identifiers for provid-
ers, health insurance plans, and employers. (More about Title II follows.)
• Title III sets guidelines for pre-tax medical spending accounts.
• Title IV sets guidelines for group health plans.
• Title V governs company-owned life insurance policies.
Title II
Title II, Administrative Simplification, is the section of HIPAA that affects most health care
providers, insurance companies, and clearinghouses. Title II provisions were meant to make
it easier and cheaper to electronically transmit health information. However, Congress real-
ized that widespread electronic transmission of a patient’s health information could affect
a patient’s privacy. Subsequently, Congress mandated that the Department of Health and
Human Services (HHS) be responsible for developing detailed Privacy Standards.
The overall objectives of Title II are to:
• Improve efficiency and effectiveness of the health care system via electronic
exchange of administrative and financial information
• Protect security and privacy of this stored patient medical information
• Reduce high transaction costs in health care, which include paper-based transactions,
multiple health care data formats, misuse, errors, and the loss of health care records
• Standardize electronic patient health records; administrative and financial data,
including health care claims, health care payments, and remittance advice; health
CHAPTER 10 Patient Confidentiality and HIPAA 233
care claims status; enrollment and unenrollment in a health care plan; eligibility in
a health care plan; and health care premium payments
• Establish unique identifying codes for all health care providers, health care plans,
employers, and individuals
• Ensure the security of electronic health information with standards protecting the
confidentiality and integrity of individually identifiable health information, past,
present, or future
To achieve these overall objectives, Title II contains five rules that health care facili-
ties were required to implement within a certain time frame. The five Title II rules are
(1) Privacy Rule; (2) Transactions and Code Sets Rule; (3) Security Rule; (4) Unique
Identifiers Rule (National Provider Identifier); and (5) Enforcement Rule.
• Privacy Rule. The Privacy Rule protects the confidentiality, integrity, and privacy of
patient-identifying information that is being distributed. This rule:
• Limits how personal health information can be used
• Provides training to employees on issues of security
• Provides “patient privacy notices” to patients and personnel
• Allows patients to have a copy of their health records
• Requires security of health records in paper, electronic, or other forms
• Obtains patient consent before disclosing patient information to persons outside
of the health care field
• Transactions and Code Sets Rule. The primary goal of this rule is administrative sim-
plification through simplification and uniformity of billing and coding for health
care services. This requires the use of standard formats and data content for elec-
tronic transmitting.
• Security Rule. While the Privacy Rule applies to all protected health information
(PHI), the Security Rule deals specifically with electronic protected health infor-
mation (EPHI), laying out administrative, physical, and technical safeguards for
electronic health information. Some methods include use of antivirus software;
password protection; and firewalls. According to HIPAA, health care plans and
providers can use and disclose EPHI but only if they have permission or a “need-
to-know reason” for each use of the information.
• Unique Identifiers Rule (National Provider Identifier). This rule mandates that covered
health care providers must use the National Provider Identifier (NPI) to identify
themselves and others for all electronic transactions. The four identifiers are the
provider; the health plan; the employer; and the individual.
• Enforcement Rule. This rule set the date when compliance with the HIPAA law
would become enforceable and established penalties and procedures for investi-
gating violations.
(For specific information on HIPAA rules, go to the government website: https://
www.hhs.gov/hipaa/for-professionals/index.html.)
MORE ABOUT THE PRIVACY RULE The HIPAA law went into effect on April 14,
2001, and required that all “covered entities” must be in compliance with the privacy,
security, and electronic-data provisions by April 14, 2003.
Med Tip
Many of the privacy provisions under HIPAA have caused confusion for the medical com-
munity. The original document began as a 337-word guideline, but the final regulation
expanded to 101,000 words, or more than 500 pages.
https://www.hhs.gov/hipaa/for%E2%80%90professionals/index.html
https://www.hhs.gov/hipaa/for%E2%80%90professionals/index.html
234 PART 2 The Health Care Environment
While it is true that the Privacy Rule is concerned with confidentiality, that is not
the basis for this rule. As medical records expanded into electronic format and were
transmitted electronically, it became critical to protect patient privacy.
Most laws will permit certain practices unless there is a specific provision or rule
against doing it. However, HIPAA is just the opposite. You can only use and disclose
patient information if there is a reason for each disclosure. The basis of the Privacy Rule
is that a permission, which is a reason for each use and disclosure of patient informa-
tion, must be identified. For example, permissions or reasons include disclosure to the
patient, required disclosures, and payment for treatment.
As noted in the bulleted list of Title II rules, the Privacy Rule applies to PHI,
which refers to any individually identifiable information that relates to all past,
present, and future physical or mental conditions or the provision of health care
to an individual. For example, information such as a patient’s name, age, gender,
Social Security number, zip code, e-mail, and medical diagnosis are all PHI. This
information can be oral or recorded in any form or medium, such as with electronic
transmission. The Privacy Rule lays down the standards that should be followed to
become HIPAA compliant.
HIPAA TERMINOLOGY: COVERED ENTITIES HIPAA, in some respects, has a lan-
guage of its own. For example: Covered entities is a term that appears in several parts
of the HIPAA act, especially in Title II. It is a category that includes health care plans,
health clearinghouses, and all health care providers using electronic transactions. These
covered entities include:
• Hospitals
• Nursing homes
• Physician practices
• Podiatrists
• Dental practices
• Pharmacies
• Hospices
• Osteopaths
• Physical therapists
• Chiropractors
• Laboratories
Compliance with HIPAA
To comply with HIPAA regulations, a medical practice must appoint a person to be
their official representative to draft private HIPAA policies and procedures as well
as to implement a program to educate and train all physicians and employees on the
mandates required by HIPAA.
These policies should become part of the organization’s procedures manual.
Policies relating to confidentiality and privacy should be included in the manual
as well.
State Law Requirements
Some state laws require that health information be released “for the good of society.”
Decisions on what information to release would be made by health care administra-
tors with assistance from other health care specialists. All employees assisting with this
function must understand the seriousness of their role.
Examples of statistics (not names of individuals) that might be released under these
state laws include:
• Births, stillbirths, and deaths
• Child or elder abuse or neglect
• Spousal rape
CHAPTER 10 Patient Confidentiality and HIPAA 235
• Incest
• Assault or abusive conduct
• Suspicious wounds
• Suspected drug use
• Injuries inflicted by a knife, gun, or other deadly weapon
• Certain communicable, infectious, or contagious diseases
A patient’s written request for his or her medical record is usually honored, unless
there is a concern that the disclosures of medical or technical information will cause
distress or harm to the patient. Many physicians, as well as other health care provid-
ers, believe that it may become easier for patients to participate effectively in their own
health care when they see their medical records.
Release of Information
Both state and federal laws exist protecting the release of medical records. HIPAA regu-
lations state that the patient has a right to know how, when, and why his or her medical
information is used (Figure 10.2). There is a general authorization for a physician or the
hospital. Patients may be refused treatment if they refuse to grant consent. There are
three exceptions when consent may not be necessary:
• When there is an emergency situation and the patient is unable to provide a signa-
ture (However, this must be obtained as soon as the patient is able.)
• When there is a language barrier the consent may be implied
• When the person is a prison inmate
In some cases, physicians have prohibited the release of psychiatric records to the
patient. The belief is that reading the records could be detrimental for the patient.
There is a general authorization for a physician or hospital to release information to
insurance companies about third-party payment claims. In fact, the claims for payment
may not be paid without the authorization and information provided by the physician
or hospital.
FIGURE 10.2 Health Care Professional
Explaining HIPAA Document to Patient
Med Tip
Confidential information about a patient should never be circulated in a memo.
236 PART 2 The Health Care Environment
There are laws regulating who may sign a release of information for persons who
are underage or unable to sign for themselves. These include:
• If the patient or client is a minor, then the parent or legal guardian may sign the
release form.
• If the parents are legally separated or divorced, the parent who has legal custody
of the minor must sign all release forms.
• If the patient or client is incompetent, a court-appointed guardian will sign the
release form.
• If the patient or client is deceased, then the legal representative of the estate signs
the release form.
Laws regulating release of information include the Healthcare Integrity and Protection
Data Bank (HIPDB) that was established as part of the 1996 HIPAA Act and the more
recent National Practitioner Data Bank (NPDB). Key information about HIPDB and
NPDB includes:
• The HIPDB was established by HIPAA. (Its authorizing statute is Section 1128E of
the Social Security Act.) The purpose of this data bank was to combat fraud and
abuse in health care delivery as well as in health insurance.
• HIPDB allowed for electronic reports and updates even during poor weather con-
ditions. HIPDB received an average of around 52,000 queries a week resulting in
27 million queries or questions a year. It is stated that the average response time
was six hours or less. HIPDB is no longer operational, having become part of the
NPDB in 2013. Information previously collected by the HIPDB is now collected and
disclosed by the NPDB.
Cautions when using PHI include:
• Do not leave your laptops or other information-gathering equipment unattended
while any patient information is on the screen.
• Do not give out your password to anyone.
• Develop automated replies to acknowledge that you have received an e-mail.
• Avoid using e-mail if you require an urgent reply.
• Do not use e-mail without the patient’s or client’s consent.
• Use caution when giving out your e-mail address.
• Do not forward e-mail without permission.
• Change passwords frequently.
The HITECH Act
The Health Information Technology for Economic and Clinical Health (HITECH) Act
was signed into law in 2009. This law expands HIPAA by including business functions,
such as for billing, accounting, and others. It was enacted as a part of The American
Recovery and Reinvestment Act (ARRA) of 2009.
The HITECH Act includes measures to modernize the nation’s use of technology
when handling private health information. The HITECH Act is meant to promote the
adoption and “meaningful use” of health information technology. This act addresses
privacy and security concerns that are associated with the electronic transmission of
health information and also addresses the civil and criminal enforcement of the HIPAA
rules. The HITECH Act further elaborates on the complex use of electronic health infor-
mation including enforcement, accountability, penalty, and prosecution guidelines for
those involved in accessing private health information.
CHAPTER 10 Patient Confidentiality and HIPAA 237
The HITECH Act has had a role in defining requirements relating to security and
privacy regulations of the Privacy Rule. The Privacy Rule sets the standards that should
be followed to become HIPAA compliant. The HITECH Act also encourages initiatives
that assist in adopting Electronic health records (EHRs).
The use of EHRs requires careful protection of patient information. For example, if
a health care employee or physician wishes to place patient information on the Inter-
net, then several precautions must be made to protect the patient’s privacy. A two-year
research project of 12 hospitals found that a number of medical devices were vulnerable
to hacking because of weak passwords that were easy to break into.
To address this concern, the HITECH Act recommended imposing data breach
notification requirements for any unauthorized uses and disclosures of “unsecured
private health information (PHI).”
Resource: Fox-Brewster, T. 2016. White Hat Hackers hit 12 American hospitals to prove patient life “Extremely Vulnerable.”
Forbes (February 23)
Eligible hospitals and professionals must become “meaningful users” of the cer-
tified EHR to qualify for incentive payments through the state Medicare Incentive
Program. Uses for electronically captured health information include: tracking clini-
cal conditions, reporting clinical quality measures, and the use of this information to
include the patient and their family in their care. This is more comprehensive than the
electronic medical record (EMR).
HIPAA requires the covered entities to limit the disclosures to only the mini-
mum information necessary to carry out the medical treatment. Under HIPAA, this
information can be conveyed to vendors, such as health insurance carriers, if they
have obtained a written assurance (contract) from the vendor that the information
will be protected. These standards to protect the PHI are in effect even if the patient
is deceased. See a listing of the five forms required by HIPAA to protect a patient’s
privacy in Table 10.1.
Under HIPAA, patients must grant written consent or permission to disclose
their PHI for treatment, payment, and other health care purposes. A Notice of Pri-
vacy Practices (NPP), a legal, written statement that details the provider’s privacy
practices, must be distributed to every patient. The patient is requested to read the
document and then sign it. This signed form, or acknowledgment, is then placed into
the patient’s medical record. See Table 10.2 for recommendations if a patient refuses
to sign the NPP.
• The privacy notice
• Acknowledgment that the notice was received
• Authorization, or consent, from the patient to provide information to others
• An agreement reached with a health care professional’s business associates
• A trading partner agreement
Table 10.1 Five Forms Required to Protect Patients’ Privacy
• Indicate the patient’s decision and date on an acknowledgment form or log.
• Include the reason for the patient’s decision, if known.
• Place a copy of this documented unsigned acknowledgment form in the patient’s record.
• Assure the patient that a refusal to sign the NPP does not mean that he or she cannot exercise
their rights.
• No physician or institution can refuse to treat the patient based solely on refusal to sign the NPP.
• The patient may still request a copy of the NPP even if he or she refuses to sign it.
Table 10.2 What to Do If the Patient Refuses to Sign the NPP (Notice of Privacy
Practices)
238 PART 2 The Health Care Environment
Who Are Affected by HIPAA?
Public health authorities, health care clearinghouses, and self-insured employers, as
well as private insurers, information systems vendors, various service organizations,
and universities, are all included under HIPAA. These organizations are referred to as
covered entities. A health care clearinghouse is a private or public entity that processes
or facilitates the processing of nonstandard electronic transactions into HIPAA transac-
tions. Thus, a clearinghouse may also refer to a billing service. See Table 10.3, Patient
Rights under HIPAA.
In other words, if a provider, such as a physical therapist, submits a bill or receives
payment for health care or treatment, this health care professional would most likely
be considered to be a covered entity under HIPAA.
Med Tip
A notice should be posted in the reception area of all health care providers explaining the
HIPAA policy on confidentiality.
Med Tip
Note that patients, whose health care information is protected under HIPAA, are not
included as covered entities.
Patients have six rights under HIPAA that are put in writing in the Notice of Privacy. They are:
• Access to and right to copy medical records
• Requests to have an amendment (or change) made to a medical record
• Request for an accounting of disclosures
• Request to be contacted at an alternate location
• Request for further restrictions on who has access to the medical record
• Right to file a complaint
Table 10.3 Patient Rights under HIPAA
Under HIPAA, a health care plan is an individual or a group plan that provides or
pays for medical care. Health care plans include group health plans, health maintenance
organizations (HMOs), the Medicare program parts A and B, the Medicaid program,
and employee welfare benefit plans. Thus, there are few, if any, health care providers
that are not affected by this law.
Treatment, payment, and health care operations, also referred to as TPO, is the
term used to indicate that a health care provider is qualified to provide care or treatment,
may reveal a patient’s PHI in order to obtain payment for health care, and can provide
functions or health care operations such as quality assurance.
Covered Transactions
Certain types of electronic transactions for the transmission of health care information,
called covered transactions, are mandated under HIPAA regulations. Covered trans-
actions are defined as those taking place between two covered entities. See Table 10.4,
Covered Entities under HIPAA.
CHAPTER 10 Patient Confidentiality and HIPAA 239
Denial of the Request for Privacy
There are extraordinary circumstances in which a request for a patient’s medical and
personal information must be denied in order to protect the patient. One example
occurs with nursing homes, because some of their patients may be confused. They
often have no family members who are responsible for their care and, thus, the nurs-
ing home administration becomes the responsible party. If there is a concern that the
patient’s health care information may be misused, then the nursing home may refuse
to allow access.
In addition, certain businesses and individuals, such as employers who sponsor
health plans, lawyers, accountants, consultants, and other professionals working for
the covered entities, are affected by HIPAA in an indirect manner. The covered entity
must make sure that the businesses, or business associates it works with, comply with
the Privacy Rule. There are severe penalties for violations for both the covered entity
and the indirect supplier.
State’s Preemption
There are some situations in which a state’s privacy laws are stricter than the Privacy
Standards established by HIPAA. In this case, the state’s laws would take precedence
over the federal HIPAA regulation. This is referred to as a state’s preemption. There
are situations in which state laws will require the release of information for the good of
society. For example, when a state law requires a disclosure, such as reporting an infec-
tious disease outbreak to the public health authorities, the federal privacy regulations
would not preempt the state law.
Unique Identifiers for Health Care Providers
In the past, health care organizations used multiple identification formats when doing
business with each other. This resulted in confusion and errors. Standard identifiers
are now being used in an attempt to reduce these problems. The Employer Identifier
• Physician practices
• Hospitals, including academic medical centers
• Skilled-nursing facilities
• Laboratories
• Dental practices
• Home health agencies
• Hospices
• Private insurers
• Ambulance companies
• Clinical laboratories
• Pharmacies and pharmaceutical companies
• Medical device companies
• Physical therapists
• Podiatrists
• Chiropractors
• Osteopaths
• Health plans (payers)
• Health care clearinghouses
• Comprehensive outpatient rehabilitation centers
• A physician sending any protected health information (PHI) to another physician
• A physician or health care provider submitting an electronic claim to an insurance
company or health care plan
• A physician sending any PHI to a billing service he or she uses
Table 10.4 Covered Entities under HIPAA
Med Tip
Remember that because patients are not included as covered entities, they can send elec-
tronic requests (e-mail) to their physician requesting information about their own records.
However, many physicians are reluctant to send information via e-mail to their patients
because of privacy concerns.
240 PART 2 The Health Care Environment
Standard, which was published in 2002, uses an employer’s tax ID number or their
Employer Identification Number (EIN) as the standard code number for all electronic
transmissions.
An individual’s Social Security number is still used for insurance identifica-
tion purposes, as most Americans have a Social Security number and identification
card. HIPAA has added the EIN for purposes of electronic transmission by health
care providers.
Can Protected Health Information Be Deidentified?
There are many reasons for obtaining health information in which the patient does
not need to be identified. For instance, health statistics relating to communicable dis-
eases can be obtained by deidentifying, or removing, descriptive information about the
patient. See Table 10.5 for a listing of information that must be removed to deidentify
PHI.
What Are the Obligations to the Patient under
HIPAA?
The health care provider, such as a physician, has several confidentiality obligations to
the patient. These include the obligation to obtain patient consent and authorization
for any disclosures of medical information and permitting patient access to medical
information. In addition, the provider must obtain patient authorization before dis-
closing PHI for purposes other than medical treatment, such as payment collection or
a disclosure of psychotherapy notes.
The provider has a requirement to provide only the minimum necessary standard
information for any disclosure about the patient. This standard means that the provider
must make a reasonable effort to limit the disclosure of patient information to only the
minimum that is necessary to accomplish the purpose of the request. The minimum
necessary standard does not apply when a provider is submitting information to the
patient, the HHS, or another provider, such as a physician or hospital, for the purpose
of treatment (Figure 10.3).
The minimum necessary standard requirements do not apply to any health infor-
mation disclosures that are required by law. For example, a physician, as a covered
entity, is still required to disclose PHI that is requested in a subpoena.
• Patient’s name
• Address, including zip code
• Social Security number
• Telephone and fax numbers
• All dates, including birth (except year), admission, discharge, and
death
• Other identifying numbers or characteristics such as birth
certificate, photos, and fingerprints
• E-mail and website address
• Medical records numbers
• Health care insurance and beneficiary numbers
• License numbers
• Motor vehicle registration numbers
• Facial photographs, such as found on driver’s license
Table 10.5 Deidentified Public Health Information
Med Tip
The minimum necessary standard is important to remember when supplying a request for
patient information. Never send a copy of the patient’s entire medical record when only
specific information is requested.
CHAPTER 10 Patient Confidentiality and HIPAA 241
Permitted Incidental Disclosures
When the Privacy Rule became effective in 1996, there was confusion as to what
could and could not be disclosed about the patient. In response to this confusion, the
Department of Health and Human Services (DHHS) released a guidance document in
2002 that clarified the “permitted incidental disclosures.” See Table 10.6 for examples
of permitted disclosures.
What Are the Penalties for Noncompliance with
HIPAA?
Noncompliance with HIPAA can result in serious penalties for health care providers
such as physicians and hospitals. The penalties for violating HIPAA range from civil
penalties of up to $100 per person per incident for minor improper disclosures of
health information, and up to $25,000 for multiple violations of the same standard
in a calendar year. Federal criminal liability for improper disclosure of information
or for obtaining information under false pretenses carries sanctions (fines) of up
to $50,000 and one year in prison. The liability for obtaining PHI under false pre-
tenses with the intent to sell, transfer, or use the information for personal gain or
FIGURE 10.3 Only the Minimum
of Information That Is Needed Can
Be Sent to Another Provider
• Health care staff at a nursing station can coordinate patient care if they speak in a low voice.
• Nurses and other staff members can talk to a patient by phone or discuss the treatment of a patient with another provider if the discussions are
conducted in low voices and away from listeners.
• Laboratory results can be discussed with patients or other health care professionals in a treatment area if privacy precautions are taken.
• A message can be left for a patient on an answering machine or with family members, but the amount of information must be limited for just
the purpose of the call.
• Patients can be asked to sign in and be called by name in the waiting room, but they should not sign the reason for their visit.
• The patient’s name can be announced in the waiting room or a public address system can be used to page the patient to come to a particular
location.
• A lighted X-ray board can be used in a nursing station if it is not publicly visible.
• Patient charts can be placed outside of exam rooms if reasonable precautions are used. The charts should be placed with the name facing the
wall or a cover should conceal the chart.
Table 10.6 Permitted Incidental Disclosures
242 PART 2 The Health Care Environment
for a malicious action, such as Medicare fraud, carries penalties of up to $250,000
and/or up to 10 years in prison. Severe penalties are in effect if lax security allows
health information to be stolen. There is also a risk of a class action suit as well as
public relations damage to the institution’s or physician’s image.
Health care fraud, especially relating to the Medicare and Medicaid programs, has
been increasing during the past decade. Fraud alerts issued by the Inspector General’s
Office of the DHHS concerning suspicious practices can alert providers and the public
to the potential for medical privacy abuse.
Another provision under HIPAA is the establishment of the National Practitioner
Data Bank (NPDB). This is a national data bank that collects reports and disclosures of
actions taken against health care practitioners, providers, and vendors for noncompli-
ance and fraudulent activities. This extensive data bank is not available to the general
public, but can be accessed by federal and state government agencies and various health
plans.
What Are the Patients’ Rights under the Privacy
Standards?
Patients have many rights under HIPAA. Health care providers have the additional
responsibility of alerting patients to their own rights under this law. See Table 10.7 for
patients’ rights under the Privacy Standards.
HIPAA-Defined Permissions
HIPAA defines 10 areas in which permission must be granted in order to use or disclose
patient health information (PHI). HIPAA-defined permission is based on the reason
for knowing, or use of, the information. Only two disclosures are required by HIPAA:
for DHHS requests and to honor patient requests. All 10 permissions are described in
Table 10.8.
Special Rules Relating to Research
HIPAA regulations also relate to medical information that is compiled and used for
research purposes. Providers and other covered entities that wish to use individually
identifiable patient information that is related to treatment, such as for cancer patients,
must perform a very detailed authorization form. The researchers must obtain
• A patient authorization that complies with the rules set by HIPAA, or
• A waiver of authorization from a privacy board or an institutional review board,
such as is found in a teaching hospital or university. The waiver must include
extensive documentation as required by HIPAA.
This regulation also covers information used for research from deceased patient
records.
Under the Privacy Standards, patients have the right to:
• A copy of the privacy notice provided by the health care provider
• Access to their medical records and the right to restrict access by others, request changes, and learn how their records have been accessed
• Ask the provider to limit the way in which health care information is shared and to keep disclosures to the minimum needed for treatment and
business operations
• Ask to whom the health care information was given
• Ask to be contacted in a special way, such as by mail or at work
• Ask to be contacted in a place other than home or work
• Examine and copy the health information the provider has recorded
• Complain to the covered entity and the Department of Health and Human Services if the patient believes there is a violation of his or her privacy
Table 10.7 Patients’ Rights under the Privacy Standards
CHAPTER 10 Patient Confidentiality and HIPAA 243
Disclosure Condition
1. Required disclosures a. Health and Human Services (HHS) can view accounts, records, and other
financial documents.
b. Patient requests to view own records
2. Valid patient authorization a. Allows for PHI to be disclosed
3. Patient requests for disclosure a. May view own records
b. May discuss treatment and medical condition with physician
4. For the treatment, payment, and health care operations
(TPO) of other covered entities
a. The patient’s written permission is needed for other covered entities, such
as attorneys and insurance plans, to have access to PHI covered entities.
5. For patient representatives such as family a. Must present a legal document, such as Medical Power of Attorney, before
granting access to PHI by family or friend
6. Qualified disaster relief organizations a. Used to provide notification regarding disaster relief
b. May be provided unless patient objects
7. Incidental disclosures about patients without their
authorization
a. Nurses and health care professionals may discuss patient cases when they
are out of the hearing distance of others.
b. Health care professionals may discuss laboratory results with patients and
others if they are out of the hearing distance of others.
c. Health care professionals may leave limited telephone messages for
patients; it is always preferable to ask the patient if this is acceptable.
d. May call a patient by name in a waiting room or over a public address
system
e. May leave patient chart outside an exam room if the patient’s identity is not
visible
8. For public purposes a. When the PHI disclosure is required by law such as with a request by the
court
b. Public health departments are authorized to collect data relating to com-
municable diseases, births, and deaths.
c. In all cases of abuse or neglect
d. Disclosure necessary to prevent serious harm, such as when a patient
threatens another person or makes a suicide threat; health care profes-
sionals must notify the patient that this disclosure has been made
e. The Food and Drug Administration (FDA) can collect PHI relating to safety
of drugs and products.
f. PHI may be disclosed in order to notify people at risk of a communicable
disease.
g. May release PHI in case of subpoena; consult with privacy official to deter-
mine specific criteria that apply
h. Law enforcement has the right to PHI in cases of abuse, neglect, gunshot
wounds, suspicious death, identifying a suspect, or medical emergency.
i. Coroners and funeral directors may receive PHI in order to perform their
functions.
j. Organ and tissue donation agencies may receive PHI to facilitate the dona-
tion process.
k. Researchers may receive PHI under certain conditions; consult with privacy
officer.
l. State workers’ compensation programs may need PHI.
m. Government agencies and facilities, such as prisons and the military, may
receive PHI under certain conditions.
9. When deidentification has occurred (i.e., when patient iden-
tifiers have been removed)
10. In a limited data set in which certain identifiers, such as
patient’s, relative’s, and employer’s names have been
removed, patients do not have the right to access
a. Psychotherapy notes
b. Certain laboratory tests, under the Clinical Laboratory Improvement Act of
1988 (CLIA), may only be given to the person who authorized the test—
usually a physician.
c. If they are prison inmates
d. Certain research projects in which the limited access has been granted in
advance
e. If the PHI is part of a government record
f. If the PHI was obtained under a promise of confidentiality
Table 10.8 HIPAA-Defined Permissions
244 PART 2 The Health Care Environment
Problems Relating to Implementation of HIPAA’s
Privacy Rules
HIPAA is an often misunderstood law. New studies are finding that some health care pro-
viders are being too overzealous in applying this law, leaving family members, caregivers,
public health personnel, and law enforcement officers without necessary information to
care for the patients. This results in frustration and delays in treatment of patients. HIPAA
was passed by Congress in 1996 to allow patients easier access to their medical records,
while limiting this access to others. Unfortunately, this has not always happened.
HIPAA regulations have made many health care agencies, such as hospitals, reluc-
tant to release any information about their patients because of fear of civil or criminal
penalties under HIPAA. This is particularly true when a patient refuses to be listed on
the hospital’s patient directory. In certain situations, some health care providers, trying
to avoid any error under HIPAA by disclosing PHI inappropriately, refuse to provide
medical records to anyone except the patient. For instance, state workers’ compensation
programs, which are exempted under HIPAA, have difficulty receiving the medical
information they require in order to provide financial assistance for the patient.
Reports of problems with accessing patient information have been filed by non-
medical persons. For example, human resource departments often require medical
information in order to administer the Family and Medical Leave Act (FMLA), facilitate
return-to-work policies, assist in Americans with Disabilities Act (ADA) accommoda-
tion discussions, and obtain results from drug testing. In addition, lawyers working
with workers’ compensation claims, medical malpractice, and personal injury litigation
need access to medical records. And members of the clergy complain that the privacy
rules keep them from visiting the sick members of their congregations when they are
hospitalized. They complain that the law is being too narrowly interpreted.
Police are also confronting problems as a result of HIPAA. The law requires hospi-
tals to report to the police when a patient comes in with a gunshot wound or there is a
suspected case of child abuse or neglect. According to some police officials, compliance
with HIPAA is slowing police investigations and even impeding the prosecution of
crimes. Police officers complain that they are being denied access to anyone, including
crime victims and persons previously reported as missing, who have opted not to be
listed in hospital directories. Although HIPAA makes exceptions for criminal investi-
gations, some hospitals, concerned with violating the law, err on the side of caution
and refuse to release any information. Under HIPAA, hospitals must allow police to
interview patients and must provide information about their condition when a serious
crime has been committed.
There have been serious problems occurring as a result of improperly interpret-
ing the requirements of HIPAA. For example, Charlie, a mental patient in Chicago,
was released from the hospital into the care of his friend to recuperate. Within a week
Charlie was dead after jumping to his death from his friend’s balcony. The friend did
not know that Charlie was suicidal when he was admitted to the hospital after he had
attempted to take his own life. The hospital did not release that information to the
friend because they believed they could not under HIPAA regulations. The friend said
he would have monitored Charlie better if he had only been told about his condition.
In another case, a California mother was unable to get the hospital to produce a key
medical record documenting her son’s blood pressure in his final hours. The young man
had died from an overdose just hours after she was told that he was stable. The record
finally arrived six years later and indicated that her son had been in mortal danger for
several hours while awaiting care. The medical record arrived too late under state law
to file a civil lawsuit. Disputes over an inability to receive records by designated family
members has become a common complaint.
In another situation, a heart patient was transferred from one hospital to another in
order to receive heart surgery. The first hospital refused to release the patient’s labora-
tory records because they believed it would be a violation under HIPAA.
CHAPTER 10 Patient Confidentiality and HIPAA 245
Med Tip
A violation of HIPAA, a federal law, is a criminal offense. Therefore, fear of violating this
law has caused an overreaction to it among many health care professionals. According to
Dr. William Kobler, former president of the Illinois State Medical Association, physicians
have become excessively cautious about releasing patient information out of fear that they
will be charged with a large fine.
Educational facilities are coping with the task of gaining access to information
about the mental stability of their students after the horrendous killing of 32 students
and faculty at Virginia Tech. Many mental health professionals believe their patients’
records are protected from disclosure under HIPAA. However, other experts believe
that information about mentally disturbed students, who indicate that they would use
harmful behavior against others, should be made known to the authorities.
Med Tip
The HIPAA law, as currently written, prohibits patients/consumers from suing over privacy
violations. Instead, patients/consumers must register their complaints with the Department
of Health and Human Services (www.hhs.gov/ocr/hipaa or www.hipaadvisory.com).
Misconceptions about HIPAA
The DHHS states that the law requires “reasonable safeguards” be taken in order
to protect patient privacy. The privacy provision applies to physicians, pharmacists,
and insurers. It was originally intended to protect computerized medical records and
billing and to allow patients easier access to their own medical records. However,
the purpose has been interpreted much more broadly. According to the HHS, many
misconceptions about HIPAA are slowly being cleared up. Clarifications note that the
privacy law:
• Does not prevent physicians or hospitals from sharing patient information with
other physicians or hospitals in order to treat patients.
• Does not prevent hospitals from disclosing names of patients to clergy or from
keeping patient directories. It does not require that patients sign in to be included
in the hospital directory of patients, only that they can opt out and not be included.
• Allows hospitals or physicians to share information with the patient’s spouse, fam-
ily members, friends, or anyone whom the patient has identified as involved in
their care.
• Does not apply to most police or fire departments. The hospital may release names
and information about homicides, accident victims, and other incidents. However,
HIPAA does limit the information that emergency medical technicians (EMTs) may
disclose.
Office personnel, acting on behalf of physicians and dentists, can still send out
reminders about appointments and leave messages on patients’ answering machines.
Recommendations
Following are some practical recommendations for physicians and physician groups to
follow when implementing HIPAA:
• Appoint and train a privacy officer to receive complaints and provide information
concerning the provider’s privacy notice materials.
http://www.hipaadvisory.com/
http://www.hhs.gov/ocr/hipaa
246 PART 2 The Health Care Environment
• Conduct an internal assessment of existing policies, procedures, and practices for
collecting and handling medical records and patient information to determine
where the deficiencies in privacy may occur.
• Enter into written agreements with all nonemployee service providers who may
have access to PHI.
• Adopt procedures for handling patient requests.
• Implement a Notice of Privacy Practices.
• Revise employee manuals regarding HIPAA standards. These personnel policies
must reflect the organization’s handling of employees who use or disclose PHI in
violation of HIPAA. The Office of Civil Rights (OCR) would likely ask for a copy
of these policies during an investigation of violations.
• Train all employees on policies and procedures regarding HIPAA.
• Retain signed authorizations, copies of notices of privacy practices, and any agree-
ments with patients restricting disclosure of PHI. This documentation should be
retained for a period of six years from the date they were created or the date when
they were last in effect.
• Implement and enforce sanctions (penalties) for violations of provider policies and
procedures.
• Establish a complaint process for noncompliance with the privacy regulation.
See Table 10.9 for a list of precautions relating to HIPAA.
The costs associated with compliance with HIPAA can be extremely high depend-
ing on the size of the organization. Blue Cross estimates that the initial cost of comply-
ing with the privacy law would be several billion dollars over a five-year period. This
is estimated to cover staffing, computer software, and expanded paperwork.
The Privacy of Health Records
The privacy of health records is a constant concern of patients as well as health care
providers. Every year many people are taken advantage of by health care fraud
schemes. Breaches of health information can lead to identity theft, credit card fraud,
and Medicaid and Medicare fraud.
Patients will often ask their doctors and caregivers for advice about the protec-
tion of their records. Physicians are becoming more cautious about the handling
and storage of medical records. Both physicians and patients share some of the
same concerns.
In addition to the precautions physicians and medical practices take, there are
several methods health care consumers can use to protect themselves from fraudulent
use of their health care information. These include:
• Make sure you understand all the information on every form that you sign. If not,
then ask for clarification from the person presenting the document to you.
• You need to use a fax cover sheet to fax anything with protected health information.
• When conferencing about a patient, you should not be in a place where others can hear you.
• Do not leave laptops or desktops unattended with patient information on the screen.
• Do not give out your computer password to anyone. Change passwords frequently.
• Do not let someone else use your computer when you are already signed on.
• Have antivirus software, robust firewalls, and screensavers installed on all computers.
• An organization can be fined each time it breaks a rule, up to $25,000 a year.
• An individual person can be fined or sent to prison.
Table 10.9 Precautions Relating to HIPAA
CHAPTER 10 Patient Confidentiality and HIPAA 247
• Do not give out personal or medical information over the phone or through the
mail unless you are sure who you are communicating with. Avoid including medi-
cal information in e-mail or via Internet Web sites, as e-mail and Internet commu-
nications can be hacked.
• Be cautious about responding to unsolicited offers of any “free” health service or
information.
• Make sure that health care records and insurance cards are carefully secured.
Review all medical bills to make sure that the claim for payment matches the care
you received.
SOURCE: Shelton, D. 2012. Health Data Protection Vulnerable. Chicago Tribune. (March 23), 1, 8.
For more information on how medical practices can protect against fraudulent use
of health records, go to the Federal Trade Commission’s Medical Identity Theft website.
For more information on how consumers can protect their medical information, go
to the AARP site, “How Private Is Your Medical Information?” at https://www.aarp.
org/caregiving/health/info-2017/how-private-is-medical-information.html.
Ethical Concerns with Information
Technology (Informatics)
Informatics presents a multitude of ethical issues, especially with the use of the Internet
by physicians and patients. Health care providers have expressed concern about
security when patient data, such as that contained in medical records, is transmitted
via the Internet. A report on confidentiality and security issues by the Computer Based
Patient Record Institute, based in Schaumburg, Illinois, states, “Breaches of confidenti-
ality can lead to loss of employment and housing, health and life insurance problems,
and social stigma. . . . Formal information security programs must be established by
each organization entrusted with health care information.”
Wireless Local Area Networks
Wireless local area networks (WLANs) are used by physicians and nurses to access
patient records from central databases while they are conducting patient rounds (bed-
side visits), adding observations and patient assessments to the databases, checking on
medications, and completing a variety of other functions. The use of wireless networks
by health care professionals presents ethical challenges and dilemmas. There can be a
trade-off between quick access to the patient’s medical records and the security of those
records. Decisions relating to the use of WLANs must take into account the impact
they have on the patient’s privacy as mandated by HIPAA. HIPAA requires that there
be safeguards in place to protect the privacy of electronic and nonelectronic protected
health information. The HIPAA security rules that were issued in final form on February
20, 2003, apply to PHI in electronic form only.
Voice Recognition Technology
With the advent of voice recognition, doctors are now able to verbally chart their
patient’s records using voice recognition technology. This allows a more immediate
and thorough documentation. New technology enables a physician to input informa-
tion by voice in real time on mobile devices as they talk with the patient. Some devices,
such as Dragon voice-recognition software, can actually highlight and validate medical
facts, as well as spot inconsistencies in dictation. Most doctors are already skilled using
dictation devices in hospital medical record systems. The new technology takes this a
step further and allows dictation and data storage as well as “intelligence” software.
https://www.aarp.org/caregiving/health/info%E2%80%902017/how%E2%80%90private%E2%80%90is%E2%80%90medical%E2%80%90information.html
https://www.aarp.org/caregiving/health/info%E2%80%902017/how%E2%80%90private%E2%80%90is%E2%80%90medical%E2%80%90information.html
248 PART 2 The Health Care Environment
For example, the software can prompt the doctor to add more information if some
clarification is missing, such as the patient’s blood pressure or heart rate.
Facial Recognition Technology
Public facilities, such as schools and hospitals, are becoming more aware of the need
for better security systems. Included in this category is the relatively new area of facial
recognition technology. This new technology has the ability to check each face coming
into a building against a database of persons who may be dangerous to a particular
group of people or a person who is a known threat. The major advantage of facial
recognition technology is the ability to quickly recognize persons such as angry or
disgruntled employees, sex offenders, expelled students, and others who may be seen
as a threat. Security can then be alerted to determine if the person standing in front of
a facial recognition camera is a risk to others.
This same technology can be used to help identify an individual, such as a patient.
While this technology is now in limited use in health care settings, its potential is great.
As more useful applications are developed, facial recognition will no doubt become
more widely used in hospitals and other health care facilities.
While facial recognition can be a very powerful new tool, it can also present some
serious risks. There have been questions about a person’s right to privacy as well as
information security. There must be efforts made to balance the benefits of facial rec-
ognition with a concern for privacy. The system is not foolproof. It will not be able to
give a warning against someone who is not a known threat. Some officials are warning
that facial recognition will not automatically warn everyone about a potential attack,
or even stop an attacker from entering a building or a school.
HIPAA has a requirement that health care organizations must secure access to PHI
data in order to protect patient privacy and to protect against data breaches that can
lead to fraud and medical identity theft.
Med Tip
Because the amount of medical information available is said to double every five years,
computerized systems have become indispensable.
Medical informatics is the application of communication and information to medi-
cal practice, research, and education. Many hospitals and health care institutions are
able to link together diverse areas such as pharmacy, laboratory, administrative, and
medical records through the use of informatics. For example, many hospital pharma-
cies have implemented a fully computerized medication ordering system to lower the
incidence of medication errors because of the inability to correctly interpret handwrit-
ten orders.
Telemedicine, or the use of communication and information technologies to pro-
vide health care services to people at a distance, is seen as the future of medicine.
Modern technology has the ability to provide health services for homebound and rural
patients via telephone, fax, Internet, and even real-time television. All of these methods
have been used to provide continuing medical education for the past decade.
Some of these methods for treatment are still in the developmental stage. For exam-
ple, Virginia Mason Medical Center, a large multispecialty group practice in Seattle,
has telemedicine sites in rural Washington and Alaska. This center uses telemedicine
to consult on diagnosis and treatment, transmit radiological studies, and conduct pre-
surgical and postsurgical exams. It has telemedicine projects in radiology, cardiology,
neurology/neurosurgery, psychiatry, dermatology, oncology, rheumatology, and reha-
bilitation medicine.
CHAPTER 10 Patient Confidentiality and HIPAA 249
Health Partners, a Minneapolis-based health plan, uses a 24-hour two-way video
conferencing method to link the nurses with the home care patients. Ordinary phone
lines are used in this system. The nurses are able to inspect wound care and healing
over this video link.
A multitude of medical information is currently available over the Internet—in
varying degrees of usefulness. Health care consumers can use the Internet to research
their disease and treatment options. Many health care plans and institutions have their
own Web sites with current information about services and medical information.
Telemedicine raises legal issues, such as concerns about practicing medicine across
state lines, that must be addressed. Physician reimbursement for these types of consul-
tations is uncertain. Also, the credentials of the person giving medical advice over the
Internet are open to both legal and ethical discussion.
Technology Technicians
The advent of new technology has resulted in a need for new categories of health
technicians:
• Health Information Administrator: Must have the ability to work with electronic
health records technology and have a clear understanding of the requirements
under HIPAA as well as the HITECH Act. This person oversees personnel who are
responsible for the use and collection of electronic health records.
• Health Information Technician: Works with electronic health records in positions
such as medical records, coding, collecting, and supervising the use and collection
of electronic health records.
These positions require college degrees and certification in Health Care Privacy
and Security.
Discussion Questions
1. Why has patient confidentiality become more difficult
in the present health care environment?
2. Why is the implementation of the new Privacy Rule
so expensive?
3. Should family members, and even friends, have
access to a patient’s medical record? Why or why not?
4. Should patients be treated via the Internet? Why or
why not?
Chapter Review
Points to Ponder
1. Will it be possible to balance the wealth of medical
information available to the patient via the Internet
with the loss of a personal relationship between the
patient and caregiver?
2. How can a patient’s PHI be maintained when medi-
cal information is being faxed from one location to
another?
3. Is the high cost of implementing HIPAA in a small
medical practice worth the expense?
4. In your opinion, will HIPAA make it more or less
difficult for public services such as police, fire, and
ambulance services to administer to patients? Explain
your answer.
10
250 PART 2 The Health Care Environment
Review Challenge
Short Answer Questions
1. What is the Privacy Rule and why is it important?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What is a covered transaction? Give an example of
one.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. What are some examples of forms of identity that
must be deidentified when health statistics are
obtained?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What are some of the misconceptions about HIPAA?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What are some of the benefits of telemedicine?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What might be some of the ethical concerns with
WLANs?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What are some privacy precautions to use when tak-
ing care of patients?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Who should a patient contact if he or she wishes
to register a complaint about a potential privacy
violation?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
9. What does “minimum necessary standard” mean and
why is it important?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
10. Explain the quote from Justice Brandeis, found in this
chapter, relating to our right to privacy.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
CHAPTER 10 Patient Confidentiality and HIPAA 251
Matching
Match responses in column B with the correct term in column A.
COLUMN A
_____ 1. Privacy Rule
_____ 2. WLANs
_____ 3. HIPAA
_____ 4. EIN
_____ 5. clearinghouse
_____ 6. health care plan
_____ 7. PHI
_____ 8. telemedicine
_____ 9. Employer Identifier Standard
_____ 10. HHS
COLUMN B
a. number assigned to an employer
b. individually identifiable information
c. wireless systems to send and receive data
d. based on employer’s tax ID or on their EIN
e. all covered entities must be in compliance
f. Department of Health and Human Services
g. a billing service
h. use of information technologies to treat people at a
distance
i. Health Insurance Portability and Accountability Act of
1996
j. individual or group that provides or pays for medical care
Multiple Choice
Select the one best answer to the following statements.
1. The Privacy Rule is meant to ensure
a. standardization of health data.
b. standardization of financial data.
c. standardization of medical care.
d. a and b only.
e. a, b, and c.
2. An example of a clearinghouse is
a. PHI.
b. a skilled nursing facility.
c. a billing service.
d. a government regulation.
e. EIN.
3. The government organization that investigates a
violation of a patient’s medical privacy is called
a. OSHA.
b. OCR.
c. PHI.
d. HIPAA.
e. none of the above.
4. A network of wireless communication systems used
to access patient records is
a. HIPAA.
b. PHI.
c. WLAN.
d. EIN.
e. ADA.
5. The privacy law
a. prevents hospitals from sharing medical informa-
tion with other facilities.
b. prevents hospitals from sharing registered patient
names with the clergy.
c. does not apply to most police and fire
departments.
d. allows unlimited information to be shared by
EMTs.
e. none of the above.
6. A violation of HIPAA
a. is a criminal offense.
b. does not carry any financial penalty at present.
c. is not reportable.
d. does not affect a physician’s reputation, as it is
just a document.
e. may have a fine of under $100 for all offenses.
7. When implementing HIPAA, physicians and
physician groups should
a. hire a privacy officer.
b. implement a Notice of Privacy Practices.
c. retain signed authorizations for at least six years.
d. enter into written agreements with nonemployee
service providers.
e. all of the above.
252 PART 2 The Health Care Environment
8. Covered entities include all of the following except
a. hospice programs.
b. medical device companies.
c. clinical laboratories.
d. police departments.
e. skilled-nursing facilities.
9. Patients’ rights under HIPAA include the ability to
a. examine their medical record.
b. have a full copy of their medical record.
c. complain to the HHS if they believe there is a vio-
lation of privacy.
d. a and c only.
e. a, b, and c.
10. When patient information is requested via a
subpoena, you must
a. comply and send the entire record immediately.
b. provide only the minimum necessary standard
even if more is requested in the subpoena.
c. provide all PHI that is requested in the subpoena.
d. provide PHI only with the consent of the patient.
e. none of the above are correct.
Discussion Cases
1. Mary Smith has just reported for duty and is reviewing
the patients she will have during the evening shift. One of
them, Ida Monroe, is on isolation for an infectious disease.
Dr. Jerome comes into the nursing station around 9:00
pm after making hospital rounds to see his patients. He
tells Mary that he noticed that one of his neighbors, Ida
Monroe, is a patient, and he would like to review her
medical record. Mary starts to give him access to the
medical record and then realizes that Dr. Jerome is not
Ida’s physician. Dr. Jerome says not to worry about that,
as he has taken care of the rest of Ida’s family for years
and is sure that Ida will want him to consult on her case.
When Mary hesitates to give him access to the medical
record, Dr. Jerome says that he will report her to her
nursing supervisor.
a. Should Mary give Ida’s medical record to Dr. Jerome?
Why or why not?
____________________________________________
____________________________________________
b. What should Mary say to Dr. Jerome?
____________________________________________
____________________________________________
c. What should Mary do if Dr. Jerome continues to insist
on seeing Ida’s medical record?
____________________________________________
____________________________________________
d. What ethical principles are involved in this case?
____________________________________________
____________________________________________
e. What legal regulations are involved in this case?
____________________________________________
____________________________________________
2. You are a CMA working in the office of a physician who
performs major surgical procedures on hospitalized
patients. A patient, who is the father of a friend of yours,
comes in for a pre-surgery exam. You happen to know
that this man is an alcoholic. You also know that the sur-
geon you work for does not like to perform surgery on
alcoholic patients as he believes they have difficulty heal-
ing and often have excessive bleeding after surgery. You
wish to tell the surgeon about the man’s drinking problem,
but you are afraid that it would be a HIPAA violation.
a. What do you do?
____________________________________________
____________________________________________
b. Is this a legal and/or ethical problem?
____________________________________________
____________________________________________
c. Should you discuss your concerns with your friend?
____________________________________________
____________________________________________
d. What is your first responsibility?
____________________________________________
____________________________________________
3. An elderly patient has approached you in the medical
office where you work. He is very distressed at having to
read and sign a HIPAA document. He asks you the follow-
ing questions. What do you say?
a. “Why am I getting so many of these privacy notices
every time I go into a medical office or hospital? Why
can’t you use one that I already signed before for
another doctor?”
____________________________________________
____________________________________________
CHAPTER 10 Patient Confidentiality and HIPAA 253
b. “Can I see my medical record?”
____________________________________________
____________________________________________
c. “I live with my daughter. Can she see my medical
record if she asks for it?”
____________________________________________
____________________________________________
d. “I want to file a complaint. Where can I do that?”
____________________________________________
____________________________________________
Put It Into Practice
Request a copy of a notice of privacy from your physician’s office. What does this notice
state about filing a complaint?
Web Hunt
Look under the official government website relating to HIPAA (www.hhs.gov/ocr/
hipaa) to find the answers to frequently asked questions about HIPAA. Describe five
questions and answers that you believe all health care professionals should know.
Critical Thinking Exercise
What would you do if, as part of your job in handling the office mail, you came across
a consultation report from a psychiatrist about one of your family members?
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Schiff, M. 2003. HIPAA: The questions you didn’t know to ask. Upper
Saddle River, NJ: Prentice Hall.
Shelton, D. 2012. Health data protection vulnerable. Chicago Tribune
(March 23), 1, 8.
Steinhauer, J. 2008. California hospital faces sanctions after workers
looked at patient records. New York Times (April 8), 16.
http://www.hhs.gov/ocr/hipaa
http://www.hhs.gov/ocr/hipaa
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255
Chapter 11 Ethical and Bioethical Issues in Medicine
Chapter 12 Ethical Issues Relating to Life
Chapter 13 Death and Dying
Chapter 14 Trends in Health Care
Part 3
Medical Ethics
256
Chapter 11
Ethical and Bioethical Issues in
Medicine
Learning Objectives
After completing this chapter, you will be able to:
11.1 Define the key terms.
11.2 List and discuss at least 10 bioethical issues
the modern physician and health care pro-
fessional face.
11.3 Describe how an ethical decision-making
model can be used when confronted with
difficult ethical dilemmas.
11.4 Discuss ethical issues relating to genetic
testing.
11.5 Describe the advances in human stem cell
research.
11.6 Summarize the ethical issues of organ
transplantation.
11.7 Discuss the importance of codes of ethics
such as the Nuremberg Code.
Key Terms
Alleges
Censure
Chromosomes
Cloning
Control group
Double-blind test
Euthanasia
Expulsion
Gene markers
Harvested
Human genome
Human Genome Project
Institutional review board (IRB)
National Organ Transplant Law of
1984
Nontherapeutic research
Placebo group
Posthumous
Randomized study
Revocation
Social utility method of allocation
Stem cells
Therapeutic research
United Network for Organ Sharing
(UNOS)
The Case of the Tuskegee Syphilis Research Study
In 1929, the United States Health Service worked with state and
local departments of health in six states to find a method to con-
trol venereal disease. The statistical studies that were conducted
between 1930 and 1932 demonstrated a high rate of syphilis in
Macon County, Alabama, where over 84 percent of the popula-
tion were black and 40 percent of the men were infected with
syphilis. The methods used for treating this disease consisted of
the injection of mercury and other toxic chemicals. Some men
recovered with this treatment; others were made even more ill;
and in some cases in which no treatment was given, the patient
was able to live for several decades.
After funding to treat the disease ran out during the Depres-
sion, the researchers conducting the Tuskegee Study attempted
to discover how severe this disease was if left untreated. For this
CHAPTER 11 Ethical and Bioethical Issues in Medicine 257
Introduction
Health care ethics, bioethics, and medical law are intertwined out of necessity. When
ethical principles are violated, a civil lawsuit often follows. As we have explained
throughout this textbook, ethics, that branch of philosophy relating to morals or moral
principles, involves the examination of human character and conduct, the distinction
between right and wrong, and a person’s moral duty and obligations to the community.
Ethics, as discussed in the health care professions, is applied ethics. In other words,
while theoretical concepts involving ethics are important for the student to know, the
basis for study involves applying one’s moral and value system to a career in health care.
Ethics involves more than just common sense, which is an approach for making
decisions that most people in society use. Ethics goes way beyond common sense: It
requires a critical-thinking approach that examines important considerations such as
fairness for all consumers, the impact of the decision on society, and the future implica-
tions of the decision.
Med Tip
The dignity of the individual, whether it is the patient, employee, or physician, must always
be of paramount concern when discussing ethics and bioethics.
Med Tip
Remember that, as discussed in Chapter 1, an illegal act, or one that is against the law, is
almost always unethical. However, an unethical act may not be illegal. For instance, provid-
ing medical treatment, such as an organ transplant, to a celebrity and denying the same
treatment for an indigent “street person,” while legal, is clearly unethical.
study, the U.S. Public Health Service selected 600 men. Of these
600 research subjects, 400 of the men had syphilis and the other
200 nonsyphilitic men became the control group of research
subjects who received no treatment. The infected patients were
not told about the purpose or nature of the research. In fact, the
researchers would refer to procedures such as spinal taps as
“treatments” to induce patient participation. When some of the
men in the control group developed syphilis over the course of the
study, they were transferred into the research group without ever
being told they had the disease. No treatment was ever given to
any of the men to fight the disease.
In the early 1940s, penicillin was found to be effective against
syphilis. The Tuskegee Project could have been discontinued at
this time, as there was no longer any need to study the course of
this disease without treatment. However, the research project did
continue. The researchers were able to track the men and make
sure they did not receive antibiotics for any condition including
syphilis. In the 1960s, a researcher working for the U.S. Public
Health Service tried to put an end to the project, which was now
being conducted by the Centers for Disease Control (CDC) in
Atlanta. When he was unsuccessful, he notified the press and
ultimately the project was stopped. The public was outraged that
poor black men had been subjected to a research project with-
out their consent and denied treatment for a treatable disease
in an attempt to gain what was seen as useless information. In
1973, the surviving patients received an out-of-court settlement
of $37,500 for the infected men and $16,000 for the men in the
control group. The families of men who had died also received
compensation of $15,000 for the infected men and $5,000 for
the uninfected men.
In 1997, President Clinton offered a public apology to the
men, including one 100-year-old survivor, who were involved in
this study. The last remaining survivor of this study died in 2004.
This was never a secret project. The project had been well
publicized in medical journals. Many of the people who read
about the study did nothing to stop it.
SOURCE: Summarized from G. Pence. Classic cases in medical ethics. New York:
McGraw-Hill, 1990.
Bioethics concerns ethical issues discussed in the context of advanced medical tech-
nology. The somewhat new field of bioethics requires the health care professional to ask
whether a practice such as gene therapy or cloning can be morally justified. In addition,
physicians must ask themselves if these practices are compatible with the character
traits of a good physician.
258 PART 3 Medical Ethics
Early History
Ethics has been a part of the medical profession since the beginning of medical practice.
In 400 b.c., Hippocrates, a Greek physician referred to as “the father of medicine,” wrote
a statement of principles for his medical students to follow that is still important in
medicine (see Figure 11.1). Called the Hippocratic Oath, the code reminds students of
the importance of their profession, the need to teach others, and the obligation to never
knowingly harm a patient or divulge a confidence. The principles stated in the oath are
found today in many of the professional codes of ethics, such as that of the American
Medical Association (AMA). The Hippocratic Oath is found in Appendix A.
Ethical Standards and Behavior
Ethical behavior, according to the AMA, refers to moral principles or practices, the
customs of the medical profession, and matters of medical policy. Unethical behav-
ior would be any action that does not follow these ethical standards. For example, it
is unethical for physicians to decline to accept patients because of their race or color.
A physician who is accused of unethical behavior or conduct in violation of these
standards can be issued a warning or censure (criticism) by the AMA. The AMA Board
of Examiners may recommend the expulsion (being forced out) or suspension of a
physician from membership in the medical association. Expulsion is a severe penalty
because it limits the physician’s ability to practice medicine. Even if the AMA censors
its members, it does not have authority to bring legal action against the physician for
unethical behavior. However, not all physicians belong to the AMA.
If someone alleges, or declares without proof, that a physician has committed a
criminal act, the AMA is required to report it to the state licensing board or governmen-
tal agency. Violation of the law, followed by a conviction for the crime, may result in a
fine, imprisonment, or revocation (taking away) of the physician’s license.
FIGURE 11.1 Hippocrates
Brian Warling/International Museum
of Surgical Science, Chicago, IL.
CHAPTER 11 Ethical and Bioethical Issues in Medicine 259
Codes of Ethics
People’s behavior must match their set of values. For example, it is not enough
to believe that patient confidentiality is important if one then freely discusses a
patient’s personal information with a coworker or friend. In this case, the health
care professional’s values and behavior are at odds. Professional organizations have
developed codes of ethics that summarize the basic principles and behavior that
are expected of all practitioners in that discipline. These codes, also known as state-
ments of intent, are meant to govern the conduct of members of a given profession,
such as medicine.
Some codes of ethics were developed as a direct response to atrocities that occurred
during wartime, especially in response to the medical experimentation in Nazi concen-
tration camps during World War II (WWII). Public awareness of the ethical and legal
problems associated with medical research, such as experimenting on human subjects,
gained prominence in the post-WWII trials at Nuremberg, Germany. In these trials,
more than 25 Nazi medical personnel were accused of committing war crimes against
involuntary human subjects. The most infamous experimenter, Josef Mengele, was also
known as the “angel of death.” What became known as the Nuremberg Code devel-
oped after these trials made public what the Nazis had done under the guise of medical
research. This code became a forerunner for the subsequent codes and guidelines that
were adopted by medical and research organizations and agencies. The Nuremberg
Code reminds us that basic ethical principles must be followed when conducting medi-
cal research, or any research involving human beings. The Nuremberg Code is found
in Appendix A.
Because of advances in medical science and technology, and changes in the medi-
cal profession, physicians have developed modern codes of ethics that serve as a
moral guide for health care professionals. The AMA has taken a leadership role in
setting standards for the ethical behavior of physicians in the United States. The first
Code of Ethics of the AMA was formed in 1847, shortly after the organization was
founded.
American Medical Association Principles of
Medical Ethics
The AMA Principles of Medical Ethics—which appear in Chapter 5—discuss human
dignity, honesty, responsibility to society, confidentiality, the need for continued study,
patient autonomy, a responsibility of the physician to improve the community, a respon-
sibility to the patient, and access to medical care.
Med Tip
The loss of a physician’s license, as required by law in serious cases of fraud, will usually
mean the loss of the physician’s reputation.
Med Tip
Every health care professional who interacts with patients, such as medical reception-
ists, medical assistants, nurses, physician assistants, and pharmacy technicians, must be
familiar with the Principles of the AMA. For example, just as physicians cannot refuse to
treat patients based on race or color, neither can their staff. Their behavior can reflect either
negatively or positively on their employer/physician.
260 PART 3 Medical Ethics
Judicial Council Opinions of the AMA
The Council on Ethical and Judicial Affairs of the AMA is comprised of nine members
who interpret the Principles of Medical Ethics. The council’s interpretation or clarifica-
tion is then published for AMA members. All members of the medical team are expected
to cooperate with the physician in upholding these principles. A few of the opinions of
the Council on Ethical and Judicial Affairs are adapted and summarized in Table 11.1.
Issue Opinion
Abuse Physicians who are likely to detect abuse in the course of their work have an obliga-
tion to familiarize themselves with protocols for diagnosing and treating abuse and
with community resources for battered women, children, and elderly persons. If it
were not reported, it might mean further abuse or even death for the victim.
Accepting patients A physician may decline to accept a patient if the medical condition of the patient
is not within the area of the physician’s expertise and practice. However, a physi-
cian may not decline a patient because of race, color, religion, national origin, or any
other basis for discrimination.
Allocations of health resources Physicians have a duty to do what they can for the benefit of the individual patient.
Physicians have a responsibility to participate and to contribute their professional
expertise in order to safeguard the interests of patients in decisions made at the
societal level regarding the allocation or rationing of health resources. The treating
physician must remain a patient advocate and, therefore, should not make allocation
decisions.
Confidential care of minors Physicians who treat minors have an ethical duty to promote the autonomy of minor
patients by involving them in the medical decision-making process to a degree equal
with their abilities.
Euthanasia Euthanasia is the administration of a lethal agent by another person to cause the
patient’s death and thereby relieve the patient’s suffering. Instead of engaging in
euthanasia, physicians must aggressively respond to the needs of patients at the
end of life. Patients should not be abandoned after it is determined that a cure is
impossible.
Fee splitting The practice of a physician accepting payment from another physician for the refer-
ral of a patient is known as fee splitting and is considered unethical.
Financial incentives for organ donation The voluntary donation of organs in appropriate circumstances is to be encouraged.
However, it is not ethical to participate in a procedure to enable a donor to receive
payment, other than for the reimbursement of expenses necessarily incurred in con-
nection with the removal of any of the donor’s nonrenewable organs. In addition,
when death of the donor has occurred, the death must be decided by a physician
other than the donor patient’s physician.
Gene therapy The Council’s position is that gene therapy, the replacement of a defective or mal-
functioning gene, is acceptable as long as it is used for therapeutic purposes and
not for altering human traits.
Ghost surgery A surgeon cannot substitute another surgeon to perform a procedure without the
consent of the patient.
HIV testing Physicians should ensure that HIV testing is conducted in a way that respects
patient autonomy and assures patient confidentiality as much as possible.
Mandatory parental consent to abortion Physicians should ascertain the law in their state on parental involvement in abortion
to ensure that their procedures are consistent with their legal obligations.
Physician-assisted suicide Instead of assisting patients in committing suicide, physicians must aggressively
respond to the patient at the end of life.
Quality of life In making decisions for the treatment of seriously disabled newborns or of other per-
sons who are severely disabled by injury or illness, the primary consideration should
be what is best for the individual patient and not the avoidance of a burden to the
family or to society.
Withholding or withdrawing life-prolonging treatment Patients must be able to make decisions concerning their lives. Physicians are com-
mitted to saving lives and relieving suffering. When these two objectives are in con-
flict, the wishes of the patient must be given preference.
SOURCE: Adapted from the American Medical Association, Code of Medical Ethics © 2008—2009.
Table 11.1 Summary of Opinions of the Council on Ethical and Judicial Affairs of the AMA
CHAPTER 11 Ethical and Bioethical Issues in Medicine 261
Codes of Ethics for Other Medical
Professionals
Other professional organizations have developed codes of ethics that assist in guid-
ing members’ behavior. These organizations promote practicing their profession with
honesty, integrity, and accountability. They are committed to respecting all laws and
avoiding involvement in any false, fraudulent, or deceptive activity. Two such groups
of professionals include nurses and medical assistants.
Nurses’ Code of Ethics
The American Nurses Association (ANA) has developed a code for nurses that dis-
cusses their obligation to protect patients’ privacy, respect patients’ dignity, maintain
competence in nursing, and assume responsibility and accountability for individual
nursing judgments. This code is found in Appendix A.
Code of Ethics of the American Association of
Medical Assistants
Medical assistants may not be faced with the life-and-death ethical decisions that face
the physician, but they will encounter many dilemmas regarding right and wrong on
an almost daily basis. For example, how does the medical assistant handle a situation
in which another employee violates confidentiality or uses foul language in front of a
patient? How is a homeless patient treated whose body smells of urine and alcohol?
What do we do if we make an error? What do we do if we observe a coworker mak-
ing an error? These are issues involving ethics and doing the right thing at the right
time. To provide guidance for this category of allied health professional, the American
Association of Medical Assistants (AAMA) has developed a Code of Ethics for Medical
Assistants. This code is found in Appendix A.
Other professional organizations, including the American Dietetic Association,
the American Health Information Management Association, the American Society for
Medical Technology, and the American Society of Radiologic Technologists, have devel-
oped codes of ethics.
Med Tip
Know the code of ethics that relates to your professional practice. Many health care profes-
sionals keep a framed copy near their place of work to remind them of this responsibility.
Bioethical Issues
Bioethical issues, resulting from advances in medical technology, are reported in news-
papers and journals almost daily. Debates about cloning, harvesting embryos, and in-
vitro fertilization were unknown two or three decades ago.
As we read in the Tuskegee case, there was very little protection for the men
involved in the study. Unfortunately, there are examples of poor protection for the
individual today. As recently as 2001, two students at two major universities died in
government-sponsored clinical trials. Another concern is that ill or dying patients will
rush into any treatment or research trial to try and save their lives.
There is a real concern that expensive biotech treatments will be used for chronic illness
when a more reasonably priced product is available. Patients may not be able to afford the
co-pay or their out-of-pocket share. An ethical dilemma arises when the patient is no longer
able to afford the treatment and the insurance company refuses to pay. The patient with a
chronic disease may decide that “enough is enough” and decide not to take medication.
262 PART 3 Medical Ethics
The privacy issue is a major concern when dealing with technological advance-
ments. For example, scientists are now able to decode our genetic composition through
the human genome project. But this also means that information about a person’s future
health, such as a five-year-old child’s future tendency for serious heart disease, may
become available to others, including insurance companies. The question arises about
to whom our health information should be made available.
Stem cell research has become an important topic among religious and even politi-
cal groups. Some states are taking initiatives to promote the development of stem cell
research to fight diseases such as Parkinson’s disease. In California, voters examined
the potential economic value of stem cell research, and, based on that criterion, passed
Proposition 71, which guarantees the spending of $3 billion in state funding over the
next decade.
And finally, many scientists and politicians have examined the potential loss of lives
in the case of a terrorist attack. The federal government is promoting Project Bioshield
to promote the development of vaccines and preventive medications in quantities that
can protect a large number of people. Economists and ethicists are concerned that the
amount of money spent on these items will leave less for diseases that are becoming
more prevalent. On the other hand, there is an optimistic approach that the research
and development of this project could lead to finding medicines to treat diseases. And,
in addition, this research may lead to fighting infections such as those caused by HIV
and hepatitis.
Table 11.2 illustrates a wide variety of medical issues relating to bioethics.
Med Tip
Adherence to bioethical principles involves the entire health care team, not just the
physician.
Abortion In-vitro fertilization
Allocation of scarce health resources Organ donation and transplantation
Cloning Quality-of-life issues
Determination of death Random clinical trials
Euthanasia: active and passive Stem cell research
Fetal tissue research Sterilization
Genetic counseling Surrogate parenthood
Harvesting of embryos Withdrawing treatment
HIV, AIDS, and ARC Withholding lifesaving treatment
Table 11.2 Medical Issues Relating to Bioethics
Organ and Tissue Donation
In the United States, people may voluntarily donate their organs and tissues to others.
They can indicate their desire to do this in their advance directives or, in some states,
on their driver’s license. The most commonly donated organs and tissues are eyes (usu-
ally the cornea), heart, kidneys, skin, bone marrow, blood, liver, and lungs. In addition,
the long bones of the body (tibia, fibula, femur, humerus, radius, and ulna) can also
be transplanted. There are some organs and tissues, such as blood, bone marrow, and
kidneys, that can be donated by living persons. There is a law in the United States that
prohibits the sale of organs. The only payment allowed is to cover the medical costs for
the donor of the transplant.
CHAPTER 11 Ethical and Bioethical Issues in Medicine 263
Many more people need donor organs than in the past because dialysis and other
medical advances are able to keep them alive longer as they wait for transplants. The
United Network for Organ Sharing (UNOS) system, established in 1999, contains a
database relating to every organ donation and transplant event occurring in the United
States since 1986. UNOS is the legal entity in the United States responsible for allocating
organs for transplant. They use a formula that gives half the weight to considerations
of medical utility or need, and the other half to considerations of justice. Current esti-
mates of people waiting for a transplant in the United States are estimated as high as
400,000. There are more than 106,000 people listed on the UNOS waiting list, and many
of these people will die before they can receive a donor organ. The most needed organs
are kidneys.
Because of a severe shortage of donor organs, patients have resorted to going onto
the Internet to search for a donor, and have even used ads, public broadcasts, and bill-
boards to advertise their need. Unfortunately, in some cases transplant departments
have exaggerated the severity of their patient’s condition in order to have him or her
jump ahead on the UNOS list. UNOS has recently made changes in its allocation sys-
tem to prevent this type of abuse. From an ethical perspective, the transplant surgeon
still may have to make the life-or-death decision about who receives the first available
organ (Figure 11.2).
The Ethics of Transplant Rationing
One of the most discussed bioethical issues today is who shall receive an organ trans-
plant. The issue of organ transplantation adds a strong ethics component to medical eth-
ics. These procedures are some of the most expensive of all medical procedures. Liver
transplants cost about $250,000. In addition, the follow-up care to aid the transplant by
suppressing the immune system can be more than $30,000 a year.
The criteria for rationing of transplants are controversial. The problem began
back in the 1960s when kidney dialysis machines and centers were scarce. The centers
had to establish screening committees to determine who should be allowed to have
kidney dialysis. At a Seattle, Washington, dialysis center, a screening committee was
composed of a lawyer, a physician, a housewife, a businessman, a minister, a labor
leader, and a state government official that became known as the “God squad.” One
of the lay members of this committee recalled voting against a woman who was a
known prostitute and a playboy ne’er-do-well. An observer to this process claimed
that committee members were measuring patients according to their own middle-
class, suburban standards.
Many believe that there is an element of “playing God” with the moral issues of
removing human body parts from one person and placing them into another person’s
FIGURE 11.2 Patient Undergoing Hemodialysis while
Waiting for a Kidney Transplant
264 PART 3 Medical Ethics
body. In many, if not most, cases, the donors are still alive when the discussions are
held concerning the harvesting of their organs, adding another dilemma. Usually both
a healthy donor and ill recipient do well after surgery. However, there are some excep-
tions. A 57-year-old man in New York donated a part of his liver to his 54-year-old
brother. In this case, the recipient did well after surgery, but the donor unexpectedly
died from surgical complications.
In some countries, it is legal to remove organs from a deceased person unless the
person has made an objection. For example, in one small village in Pakistan there are
many poor people who have long purple scars on their side resulting from surgery to
sell a kidney, often for less than $1,700. However, the United States and Great Britain
are among the countries still committed to the donation model for organs. Under the
donation model, organs may be taken (harvested) only with the consent of the donor
(or the donor’s surrogate representative). The Uniform Anatomical Gift Act, which
has been adopted in all states, permits competent adults to either allow or forbid the
posthumous (after death) use of their organs through some type of written document,
including a donor card. See Figure 11.3 for a sample donor card.
Problems still arise over the allocation of scarce organs. Many ethicists and others
believe that because there is a fixed supply of transplant organs, especially livers and
hearts, clearly defined standards should be used by all transplant committees. One basis
for determining the allocation of organs is to give them to patients who will benefit the
most. This is the social utility method of allocation. It is based on careful screening and
matching of the donor with the recipient to determine if there is a strong chance of the
recipient’s survival. Another favored approach is one of justice, which gives everyone
an equal chance at the available organs. A controversial proposal would put younger
patients higher on the waiting list.
FIGURE 11.3 Organ Donor Card
I, _______________________, hereby make the following
anatomical gift, if medically acceptable, to take effect upon
my death.
_______Any organs or parts _______Entire body
Only the following specific organs or parts:
_______________________________________________
Limitations or special wishes if any:
_______________________________________________
(Signatures of donor and witnesses appear on reverse side.)
Organ Donor Card
Signed by the donor and the following two witnesses in the
presence of each other.
Donor Signature: _________________________________
Date of Birth: ______________ Date signed: __________
City and State:___________________________________
Witness Signature:________________________________
Witness Signature:________________________________
This is a legal document under the Uniform Anatomical Gift
Act or similar laws.
Organ Donor Card (side two)
Front of card
Back of card
CHAPTER 11 Ethical and Bioethical Issues in Medicine 265
Other methods used to allocate scarce transplant organs include a seniority (first-
come, first-served) basis and a lottery method. Both of these methods cause concern
because they may result in providing a scarce resource, such as a heart, to a patient
whose need is not as great as a patient further down the seniority list. The lottery
method may result in a patient with little chance for recovery, such as someone suffer-
ing from terminal cancer, receiving a scarce organ. When other criteria for selection are
added, such as age, social status, or ability to give back something to the community,
there is the suspicion that this is not a just system for all persons.
A combination approach using basic “medical suitability,” which measures the
medical need and medical benefit to the individual patient, may be used first. After
a decision is reached, then a seniority (first-come, first-served) basis is the most often
used method.
Most people agree that selling organs is morally objectionable. The National
Organ Transplant Law of 1984 forbids the sale of organs in interstate commerce.
This law seeks to protect the poor from being exploited, as they may be tempted to
earn money by selling what they believe to be an unneeded organ, such as a kidney.
There is also a concern addressed by this legislation that the donor organs should be
located as close to the patient’s locale as possible in order for a fast response when an
organ becomes available.
There have even been suggestions that there should be a financial incentive for
cadaver (a dead body used for dissection and study) organs. However, ethicists and
members of the general public are against this proposal. They are very concerned
that a “slippery slope” could develop by hastening the death of a person to harvest
the organs.
Medicare has been expanded to fully fund kidney transplants, and most insur-
ance plans will now fund heart transplants. A number of courts have questioned or
even reversed decisions by Medicaid to not fund liver transplants. In a Michigan
case, the court required the state to fund a liver transplant for an alcoholic patient.
The court found in favor of the patient in spite of documentation that the patient’s
alcoholism most likely resulted in the need for the transplant (Allen v. Mansour, 681
F. Supp. 1232, E.D. Mich. 1986). See the case study on Mickey Mantle’s new liver
later in the chapter.
A dramatic example of the painful decisions surrounding the issue of organ trans-
plants is the situation that the state of Oregon faced in the 1980s. The state could either
fund Medicaid coverage for 1,500 additional patients or continue to fund its organ
transplant program for an anticipated 34 patients. Between 1985 and 1987, the state
funded 19 transplants at a cost of $1 million; only nine of these patients survived the
transplant. Cost estimates for transplants in Oregon for the years 1987 to 1989 were $2.2
million. Because the amount was expected to double during the next two years, voters
in Oregon believed that it was more cost effective to fund Medicaid, which provides
basic health care for many, rather than fund transplants for the few patients who would
require them. The public response to this new plan was slow. However, there was a
nationwide response when a seven-year-old boy died without receiving a needed bone
marrow transplant to treat leukemia. The new law resulted in several lawsuits as well
as fundraising for transplants in Oregon. The lessons learned from Oregon’s plight are
many:
• Medical resources are limited in all states.
• The need for acute care, such as for transplants, is more visible than preventive
care, such as prenatal care.
• New medical discoveries and treatments, with their enormous costs, are likely
targets for cost containment rather than older, more basic, medical treatments.
• For new treatments to be funded, they must replace older, ineffective treatments.
266 PART 3 Medical Ethics
These difficult issues mean that policymakers will have to examine all treatments
on a cost/benefit basis and be ready to eliminate outdated and ineffective medical
treatments. Information about organ transplants is found in Table 11.3.
Ethical Issues and Personal Choice
In some cases, the health care professional may have a personal, religious, or ethical
reason for not wishing to be involved in a particular procedure. Ideally, this preference
should be stated before one is hired. If a situation arises after an employee is hired, it
should be discussed openly with the employer. The employee can request permission to
refrain from participating in a procedure, such as a therapeutic abortion, if that proce-
dure would violate the employee’s values or religious beliefs. However, in some situa-
tions, the inability of an employee to assist the physician may jeopardize the health and
safety of the patient. In these cases, it may even be necessary for the employee to resign.
There are still many areas of medical ethics for which there are no conclusive
answers. When should life support be withdrawn? Is euthanasia (intentionally killing
the terminally ill) ever permissible? Should a baby’s life be sacrificed to save the life of
the mother? Should a baby be conceived in order to donate a needed organ to an ill or
dying sibling? Scientific discoveries continue to present new medical possibilities and
choices—but with these possibilities come more complicated ethical issues that must
be addressed before choices can be made.
Med Tip
The ethical implications of complicated issues and dilemmas must be carefully examined
by the health care professional. The ethics of the employer must be in agreement with the
ethics of the health care professional.
• The largest group of Americans awaiting organ transplants are those ages 50 to 64.
• More than 28,000 transplants were performed in 2009.
• People of all ages can be tissue and organ donors.
• The heart is the only organ that cannot come from a live donor.
• Organ donation does not conflict with the tenets of any major religion.
• A person can register to be an organ donor at most state motor vehicle bureaus.
• Even if a person is a registered donor, family members ultimately decide whether their relative’s
organs may be donated after death.
• It is essential that everyone who wishes to donate their organs clarifies their wishes to family and
friends.
Table 11.3 Information about Organ Transplants
The Ethics of Biomedical Research
Ethics of the Biomedical Researcher
The relief of pain and suffering, the restoration of body functions and health, and the
prevention of disability and death are all aims of health care. Human experimentation
is considered necessary for medical progress to occur. Both animal testing and human
testing have been used successfully to further medical knowledge and conquer disease.
Medical research almost always carries with it some degree of risk. Human beings
cannot be used for testing purposes unless they consent to participate. Obtaining
informed consent is particularly important in nontherapeutic research, or research that
CHAPTER 11 Ethical and Bioethical Issues in Medicine 267
will not directly benefit the research subjects. The justification for all medical research
is that the benefits must outweigh the risks. Many consider that this utilitarian, or ben-
efit/cost, approach to decision making is a good model to use when examining medical
research. Merely increasing knowledge is not considered an adequate justification for tak-
ing a risk with a human life. Medical researchers must abide by the standards for testing
that have been established by their medical associations, such as the AMA and the ANA.
The Department of Health and Human Services (DHHS) implements government
standards for research. The government requires that all institutions that receive federal
research funds, such as hospitals and universities, establish an institutional review
board (IRB) that oversees any human research in that facility.
Consent
Informed consent (as discussed in Chapter 5) is necessary when a patient is involved
in therapeutic research. Therapeutic research is a form of medical research that may
directly benefit the research subject. The research subject must be made aware of all the
risks involved with the research. In addition, the subject must be informed about the
type of research design that is used. The research design will be one of these:
• Control group who receive no treatment
• Randomized study in which the subject is assigned at random to either the control
or experimental treatment group (who receive treatment)
• Placebo group in which an inactive substance or an alternative type of treatment
is given.
The physician conducting the research must explain all the facts relating to the
research, even if this means that the patient may decide not to participate.
An African American woman, Henrietta Lacks, unknowingly gave an incredible gift
to research when a strain of cancer cells was saved from a tumor that was removed from
her in 1951. Mrs. Lacks died a few months later from a virulent strain of cervical cancer.
The tumor was sent to a researcher at Johns Hopkins where he was trying to find cells
that would live indefinitely so that researchers could experiment on them. Mrs. Lacks’
cancer cells were perfect as they multiplied rapidly and did not die in the lab. A cell line
from these cells, called HeLa (named after Henrietta Lacks), has become immortal and
is still used by researchers. This cell line was used to develop the first polio vaccine, and
helped produce medications for numerous diseases including Parkinson’s, leukemia,
and the flu. Millions and millions of these cells have been produced and are now sold to
researchers, and have generated millions of dollars in profit. However, the Lacks family
has never benefitted from them, and Henrietta Lacks died in poverty. Even though rules
about informed consent have changed in the last 60 years, nevertheless, patients still do
not have much control over tissues and organs that are removed during surgery.
There is a strong belief among most people that performing research without per-
mission is unacceptable. And many Americans are reluctant to even give consent for
medical research. In 1996, the DHHS and the Food and Drug Administration (FDA)
passed regulations that allowed research about emergency treatment to occur without
first having received permission. In some cases, such as with an unconscious patient
or one whose condition does not allow time for informed consent, it was necessary to
perform research in order to help learn how to care for patients with life-threatening
injuries.
Clinical Trials
Clinical trials are organized medical studies to provide large amounts of clinical data
used to evaluate medical treatments. The studies are funded by drug companies, medi-
cal device manufacturers, and the government to test new treatments on volunteers. The
268 PART 3 Medical Ethics
overall objective is to determine if the product is safe and effective to use on patients.
The treatments must be approved by an independent safety panel, with the oversight
of the FDA or the Office for Human Protections. All of the research subjects must be
fully informed of any potential ill-effects or hazards.
Many patients who participated in clinical trials have received benefit for illnesses
such as stroke, multiple sclerosis (MS), and cancer. However, in some cases not all clini-
cal trials have a positive outcome.
Med Tip
Some medical ethicists have concluded that, in some cases, the risk to human life is too
great in clinical trials.
When Research Can Resolve Debate over the Best
Treatment
Medical research does not always give the answers that the medical profession is looking
for. Ethics becomes a concern when the results prove that the type of treatment subjects have
been receiving has actually harmed them. And in some cases, there is no definitive answer
on the best treatment. For example, in the case of prostate cancer, men have been faced
with the decision of having their cancerous prostate removed with the inherent danger
of suffering from impotence and incontinence or leaving this slow-growing cancer alone.
The latest research indicates that after six years there is little difference in the death rate
between the men who had the cancer removed and the men who did not. However, the
overall death rate from cancer by the end of their life is 50 percent lower in the men who
had their prostate removed. A urologist at Johns Hopkins, Dr. Patrick Walsh, believes that
death from this type of cancer should be prevented because the cancer moves into the bones
and can be extremely painful. But the experts are still divided on the best treatment to use.
A research study with a happy ending is the case of premature baby, Jake. The
infant was born four months ahead of schedule weighing 1 pound, 10 ounces and was
hospitalized for 102 days. On his eleventh day after birth he experienced one of the most
frequent causes of death in premature infants when his intestines tore and failed. (This
happens in as many as 10,000 of the 500,000 premature infants born every year.) There
were two options for treating Jake. One choice was to insert a drain into the ruptured
or torn part of the intestine. The other option was to perform surgery and remove the
damaged portion of the intestine. Because Jake’s condition was frail, he was given the
drainage tube to pull out the waste products from his intestine rather than to put him
through a surgical procedure requiring a general anesthetic.
His doctor made that decision, in part, based on the results of a pediatric research
study at the Yale-New Haven Children’s Hospital, in which it was determined that the
outcome was the same whether the patient was treated with the surgery or the drainage
tube. Until the research study took place, doctors were determining which treatment
to use based on their own preference. During a four-year research period, when a baby
was rushed into the operating room at a hospital participating in the study, the doctor
was handed one of two randomly selected sealed envelopes. Half of these envelopes
gave instructions to insert the drain. The other half had instructions to perform the
surgical procedure to remove the dead length of tissue. Because the results of the study
showed no significant difference in the outcome of the two procedures, many doctors
are performing the tubal insertion such as Jake received, rather than the surgical option.
The surgical treatment often placed an additional burden on an ill infant. In this type
of research study, all the infants received beneficial treatment.
Jake’s mother stated that she is grateful that he received only the tubal procedure
because his feeding and aftercare were much easier. He went home, with a functioning
CHAPTER 11 Ethical and Bioethical Issues in Medicine 269
Med Tip
The physician is responsible for explaining to the patient all the risks involved in a research
project. However, other health care professionals, such as nurses, pharmacists, and medi-
cal assistants, may become aware of information relating to a research project that needs
to be conveyed to the attending physician. An example would be a patient who tells the
nurse that he is taking a medication prescribed by another attending physician at the same
time that he is taking an experimental drug from a medical researcher.
intestine, nine days before his due date weighing 5 pounds, 7 ounces. Doctors state that they
no longer have to consider the tubal procedure as a “second-class” treatment (Figure 11.4).
FIGURE 11.4 Premature Infant
© allOver images/Alamy
Conflicts of Interest
A conflict of interest can arise in medical research if the researcher’s interests are placed
above the interests of the patient. For example, medical researchers fearful of losing
financial backing for research projects may state incorrect data or test results in order to
have the research appear more successful than it is. In addition, it is a conflict of interest
if physicians engaged in drug-testing research for pharmaceutical companies and own
stock in those companies. In both examples, the physicians may be improperly placing
their own interests before the patient’s interests.
Dr. Ezekiel Emanuel, who heads the Department of Clinical Bioethics at the National
Institutes of Health Clinical Center, believes that evidence shows that researchers who have
a financial tie to manufacturers will tend to interpret their data in a more favorable light
when they are studying those companies’ products. He recommends that the key to run-
ning important medical studies is to have people who can make independent judgments.
An unusual example of a conflict of interest occurred when a manufacturer of
medical devices decided not to send a “Dear Doctor” letter of warning about defective
equipment because it did not want to expose patients to “unnecessary device replace-
ment.” The Guidant Corporation, which manufactures implantable heart defibrillators,
determined that two of their models had an electrical flaw. In fact, at least seven patients
are known to have died when their defibrillators failed to work. These defibrillators are
life-saving devices that are surgically implanted into the patient and control potentially
fatal heart rhythms. A “Dear Doctor” letter was drafted as an internal memorandum
alerting medical doctors to these defects, but the letter was never sent. The company
finally alerted doctors to the defect when it became aware that the New York Times was
going to publish an article about the problem.
270 PART 3 Medical Ethics
Ethics of Randomized Test Trials
Many ethicists believe that it is unethical to use a control group when conducting medi-
cal experiments, as this group has no hope of benefiting from the experimental drug.
A race-based control group may produce an additional ethical dilemma. For example,
in the Tuskegee syphilis case at the beginning of the chapter, the Public Health Service
used members of the black population who had untreated syphilis as a research group.
These patients were not given an effective treatment for syphilis that was available at
the time. A race-based selection of research patients is unethical unless there is evidence
that they will benefit by the therapy. There are some diseases that affect only a particular
portion of the population, such as Tay-Sachs disease that affects the Jewish population.
In this instance, research participants in a study to eradicate Tay-Sachs disease would
be drawn only from the Jewish population.
Problems with the Double-Blind Test
In a double-blind test, neither the experimenter nor the patient knows who is getting
the research treatment. This is considered to be an objective means of gathering test
data because it eliminates any bias, or preference, the researcher may have toward a
specific research method or treatment. An ethical question arises with double-blind tests
about the process of informed consent. Are the patients fully aware that they may not be
receiving any treatment whatsoever? In some research situations, in which the physi-
cians discover an immediate positive effect of an experimental drug on the test group,
the project will be adjusted so that the control group can also receive the treatment.
Human Genome Project
The Human Genome Project was begun in the early 1990s as a research program by
the federal government. The purpose was to determine or “map” the sequence of the
total number of genes, estimated at 100,000, each of us has within the 23 pairs of human
chromosomes. This complete set of genes is known as the human genome. It resembles
a set of blueprints for the human being that is stored in the nucleus of each cell.
The goal of the Human Genome Project, which is supported by scientists in sev-
eral countries, is to provide a map of where each gene is located on the 23 pairs, or 46
chromosomes. The U.S. portion of the genome project was divided between scientists
in nine centers at both national laboratories and universities. This important project
was estimated to cost between $3 and $5 billion and take 15 to 20 years to complete.
However, the project was completed ahead of time in the year 2003 and has provided
important information for both biological and medical researchers.
The Human Genome Project provides a better understanding of the process of
human evolution. The most important information for medical researchers relates to an
improved understanding of the relationship between certain genes and particular dis-
eases. The hope is that this genome information will result in the eventual elimination
or control of genetic diseases such as cystic fibrosis and sickle-cell anemia. Ultimately, a
test for a gene could actually diagnose a medical condition before any symptoms even
appear. The “maps” that have been created by this project make it 10 times quicker to
locate a particular gene on a linkage map.
Med Tip
A genome linkage map is similar to a roadmap in that it provides the location of where a
particular gene (genetic material) is located on the chromosomes. Chromosomes are
threadlike structures within the nucleus (center) of a cell that transmit genetic information.
CHAPTER 11 Ethical and Bioethical Issues in Medicine 271
There is currently an astonishing list of genes identified as gene markers that are
responsible for disease. Some of these gene markers for disease are for colon cancer,
amyotrophic lateral sclerosis (ALS), type II (adult-onset) diabetes, Alzheimer’s disease,
Huntington’s disease, and achondroplastic dwarfism.
Human Stem Cell Research
Stem cells are considered the master cells in the body that can generate specialized cells.
In 1998, Dr. James A. Thompson, a University of Wisconsin researcher, became the first
person to isolate stem cells. These cells, which can grow into any cell or tissue in the
body, are extracted from the inner mass of a developing embryo. They are composed of
100 to 300 cells that are small enough to fit on the head of a pin. Scientists regard these
cells as the building blocks of a new era of regenerative medicine in which the body can
eventually heal itself. According to scientists, the stem cells can be used to treat a variety
of diseases, including Parkinson’s disease, Alzheimer’s disease, spinal cord injuries,
stroke, and diabetes. For example, in the case of diabetes in which the pancreatic cells
are ineffective, researchers can produce healthy pancreatic cells from embryonic stem
cell lines that are then transplanted into a diabetic patient.
The controversy surrounding human stem cell research is not about the ability to
end disease, as most people agree that this should be the purpose of medical research,
but rather the use of frozen embryos to conduct the research. Cells are removed from
frozen embryos, which are obtained in a variety of ways, including those that would be
discarded by in-vitro fertilization clinics. Some of the embryos are grown in the labora-
tory especially for the purpose of stem cell research, some are obtained from terminated
pregnancies, and a few are donated by couples who have excess embryos as a result of
in-vitro fertilization.
This research has resulted in intense criticism from several fronts, including reli-
gious groups and abortion opponents, because the embryos used in the research are
destroyed. These groups believe that the embryo is a living human being, and destroy-
ing them is therefore the same as killing a person. The issue is so controversial that Con-
gress has banned all federal financing for stem cell research. However, this ban does not
affect private stem cell research. In addition, the FDA, which oversees research therapy
tested on people, presently has little jurisdiction over embryonic research.
Many states have widely opposing views on the research. For instance, a Massa-
chusetts law enacted in 1974 prohibits using any live human fetus in experiments. On
the other hand, Pennsylvania has introduced legislation to allow government-financed
scientists to derive stem cells from embryos. A representative from South Dakota, Jay
Duenwald, who introduced legislation to ban stem cell research, likened it to Nazi
experiments. His legislation passed, and embryonic stem cell research is now a crime
in South Dakota, punishable by as much as a year in jail and a $1,000 fine.
Many state spokespersons are not opposed to studies using frozen embryos to treat
diseases like diabetes, but they fear what they consider negative uses, such as for clon-
ing. President George W. Bush restricted federally funded research to stem cells that
already had been obtained before August 9, 2001, but no new embryonic cells could
be harvested after that date. While the ability to use stem cells that had been obtained
before the August 2001 date still remains true, the ban on research has been lifted by
President Obama’s administration in 2009. While federal funding is now available for
stem cell research, it is unclear about the amount that will actually be provided as
research funding is limited.
One answer to the moral dilemma created by stem cell research is a new proce-
dure that would not destroy embryos. In this method only one cell is removed from
the embryo without destroying the embryo. This cell would be allowed to divide into
two cells. One of these cells would then be tested for genetic defects and the other cell
would be cultured to propagate new stem cells. If genetic defects were found in the first
272 PART 3 Medical Ethics
tested cell, then the cells would be discarded. Some ethicists have voiced a concern that
removing even one cell might damage the embryo.
An even less controversial approach to stem cell research is offered by the research-
ers who use sources other than embryos. For example, blood stem cells can regenerate
specialized cells to treat blood disorders such as leukemia. These blood stem cells are
found in adult bone marrow, in umbilical cord blood, and in small amounts in the
circulating bloodstream. The hope is that these stem cells can be used in new ways to
produce other types of cells such as neural and liver cells. This is far less controversial
than embryonic stem cell use.
A “slippery slope” is often mentioned by those who oppose stem cell research. The
use of the term “slippery slope” is meant to warn people that there are dangers associ-
ated with starting a practice the opposers believe is ethically questionable. We can easily
slip backward down that slope and find that the uses for stem cells may outweigh the
ethical dangers of harvesting them.
Whistleblowing
Whistleblowing occurs when employees publicly report a potentially dangerous situ-
ation in their organization to authorities who can take corrective action. The employee
must:
• Exhaust all other channels for correcting the situation within the organization.
• Have documented evidence that would convince an impartial and reasonable
observer.
• Have good reason to believe that by “blowing the whistle” and going public the
necessary changes will be made to prevent harm and injury.
The ethical justification for whistleblowing is evident as it is a service to protect
others. This is often done at great personal risk to the whistleblower. Often whistleblow-
ers are subject to harsh treatment by others within their organization, even coworkers.
Before a decision is made to “go public” with information, it is wise to consider all
other alternatives. An anonymous complaint can be made to a regulatory agency such
as the Environmental Protection Agency (EPA). The Occupational Safety and Health
Act (OSHA) of 1970 prohibits any retaliation against an employee who files a complaint
with OSHA. The Solid Waste Disposal Act and the Food and Drug Administration also
protect employees against retaliation for “blowing the whistle.” Whistleblowers who
work for the federal government are protected by law from losing their jobs. As a last
resort, some people have leaked information to the press such as in the Guidant case
mentioned previously.
Even though the lives of many whistleblowers have been negatively affected, most
say that they could not have lived with themselves if they had remained silent.
Med Tip
Whistleblowing is always used as a last resort when all other methods for warning about
a dangerous situation have failed.
The Cost of Medical Care
A problem that has driven up the cost of medical care is that some physicians have
encountered the need to practice a form of defensive medicine to avoid potential
lawsuits. The estimate is that at least $100 billion of the United States’ $1.7 trillion
annual health care bill is the cost of defensive medicine including Cesarean deliveries,
unneeded antibiotic therapy, and advanced imaging tests such as PET, MRI, and CT
CHAPTER 11 Ethical and Bioethical Issues in Medicine 273
scans. In some cases, patients request these imaging procedures for aches, sprains, and
cardiac assessment. As a result, some insurance companies have issued policy state-
ments declaring that full body scans are medically unnecessary.
It is understandable that when unexpected situations occur, such as flu pandemics,
it is necessary to ration health care services because of limited medications and vaccines,
service providers, and treatments. For example, during a recent H1N1 flu outbreak
there was a question about who gets the vaccine in a flu outbreak. Physicians argued
that young people, rather than the elderly, should have the limited vaccines first. Most
people agreed with this decision.
However, many Americans are concerned that they are not receiving necessary
health care on a daily basis because of rationing. There are arguments about whether
women under 50 years of age should receive mammograms. There is ongoing debate
about elderly patients having expensive procedures such as MRIs and CT scans. Many
believe that a renewed interest in correcting inequalities in the health care system will
solve some of these questions and problems.
Med Tip
Medical office personnel must treat all patients with the same consideration for the patient’s
dignity no matter their ability to pay.
Discussion Questions
1. Explain what the AMA Principles of Medical Ethics
statement on “improved community” means.
2. Discuss the freedom of choice that a physician has
about accepting patients, as stated in the AMA’s Prin-
ciples of Medical Ethics.
3. What should health care professionals do if their ethi-
cal values differ from those of their employer? Discuss
several options.
4. Describe several bioethical issues that modern-day
health care professionals have to face.
5. Why are bioethical issues discussed in codes of ethics?
6. Describe a situation in which the “slippery slope” of
ethics may be a concern.
7. Should whistleblowers be protected by law from los-
ing their jobs if they “blow the whistle” about an ille-
gal or unethical action in their organization?
Chapter Review
Points to Ponder
1. Why do students still learn about codes of ethics such
as the Nuremberg Code?
2. Do all physicians follow the guidelines relating to
euthanasia as discussed in the Opinions of the Coun-
cil on Ethical and Judicial Affairs of the AMA? If not,
why not?
3. What would you do if you knew that a patient suf-
fering from cancer was part of a control group of
research patients who were not receiving a drug that
could benefit them?
4. What do you do when you observe unethical behav-
ior by a coworker?
5. What do you do when you make a mistake?
6. In your opinion, what criteria should be used for
selecting the recipient of a scarce organ such as a
heart or liver? Would you include such factors as the
patient’s medical need, chance for success of the pro-
cedure, and the patient’s responsibility for causing the
illness? Why or why not?
11
274 PART 3 Medical Ethics
Review Challenge
Short Answer Questions
1. Describe the social utility method for the allocation of
scarce organs.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. Describe the justice method for the allocation of scarce
organs.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. Describe the medical suitability method for the alloca-
tion of scarce organs.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. In your opinion, what criteria should be used to deter-
mine who will receive a flu shot when there is only a
limited supply?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What is whistleblowing? What federal laws might
protect a whistleblower?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. Define “slippery slope.”
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What do you say to a family member who says, “I
don’t want to be an organ donor because I’m afraid
that if I’m unconscious they won’t take good care of
me”?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Explain what a double-blind test is and why it is used.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
9. What is UNOS and what does it do?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
10. Marion is blind and deaf as a result of a childhood ail-
ment. She is now 45. She is very independent but does
require some assistance with grocery shopping and
other activities. She is single and her family of siblings
and relatives live in another state. How might Marion
be given some assistance without being intrusive to
her?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
CHAPTER 11 Ethical and Bioethical Issues in Medicine 275
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. revocation
_____ 2. expulsion
_____ 3. censure
_____ 4. allege
_____ 5. posthumous
_____ 6. stem cells
_____ 7. euthanasia
_____ 8. ghost surgery
_____ 9. double-blind test
_____ 10. harvesting
COLUMN B
a. condemn
b. remove organs or embryos
c. after death
d. research design
e. take away; recall
f. one physician substituting for another
g. force out
h. master cells of the body
i. to assert
j. aiding in the death of another person
Multiple Choice
Select the one best answer to the following statements.
1. Nontherapeutic research
a. will always benefit the research subject.
b. does not directly benefit the research subject.
c. is unethical.
d. should be justified with the benefits outweighing
the risks.
e. b and d only.
2. A double-blind test means that
a. neither the patient nor the researcher knows who
is getting the treatment.
b. the participants are visually impaired.
c. the results will not be gained from an objective
method for testing.
d. the control group will eventually benefit from
being in the experiment.
e. there is an unethical practice taking place.
3. Many professional codes of ethics are based on
a. current laws.
b. mandates from the government.
c. early writings of Hippocrates.
d. outdated value systems.
e. none of the above.
4. Stem cells are
a. genetically identical cells from a single common
cell used to create an identical organism.
b. master cells in the body that can generate special-
ized cells.
c. the same as chromosomes.
d. the same as gene markers.
e. none of the above.
5. What topics are included under the topic of bioethics?
a. stem cell research
b. fetal tissue research
c. random clinical trials
d. a and b only
e. a, b, and c
6. The Summary of Opinions of the Council on Ethical
and Judicial Affairs of the AMA
a. describes fee splitting as an acceptable practice.
b. admonishes the surgeon against “ghost surgery.”
c. admonishes the physician to be sensitive to the
need to assist patients in suicide.
d. describes gene therapy as acceptable as long as it
is for the purpose of altering human traits.
e. all of the above.
7. Taking away a license to practice medicine is called
a. revocation.
b. censure.
c. expulsion.
d. a and c only.
e. a, b, and c.
276 PART 3 Medical Ethics
8. Medical issues relating to bioethics include
a. harvesting embryos.
b. DRGs.
c. withdrawing treatment.
d. HMOs.
e. a and c only.
9. Conflicts of interest occur
a. when there are financial interests present.
b. if stock is owned by the physician in the company
that sponsors the research.
c. if the researcher can control the results of the
research.
d. if the patient’s needs are not considered.
e. all of the above.
10. A model for making ethical decisions requires that
a. the potential consequences are not revealed in
order to provide objectivity.
b. the alternative of “not doing anything” is not an
appropriate consideration.
c. the ethical issues are defined in vague terms in
order to look at all the dimensions of the problem.
d. the facts be determined by asking who, what,
where, when, and how.
e. all of the above.
Discussion Cases
1. Mickey Mantle, Baseball Hall of Fame center fielder for
the New York Yankees, received a liver transplant in 1995
after a six-hour operation. It took only two days for the
Baylor Medical Center’s transplant team to find an organ
donor for the 63-year-old former baseball hero when his
own liver was failing because of cirrhosis and hepatitis.
Mantle was a recovering alcoholic who also had a small
cancerous growth that was not believed to be spreading
or life threatening.
There is usually a waiting period of about 130 days for a
liver transplant in the United States. A spokesperson for
the United Network for Organ Sharing (UNOS), located in
Richmond, Virginia, stated that there had been no favorit-
ism in this case. She based her statement on the results
of an audit conducted after the transplant took place.
However, veteran transplant professionals were surprised
at how quickly the transplant liver became available.
Doctors estimated that, because of Mantle’s medical
problems, he had only a 60 percent chance for a three-
year survival. Ordinarily, liver transplant patients have
about a 78 percent three-year survival rate. There are
only about 4,000 livers available each year, with 40,000
people waiting for a transplant of this organ. According
to the director of the Southwest Organ Bank, Mantle was
moved ahead of others on the list because of a deterio-
rating medical condition. The surgery was uneventful,
and Mantle’s liver and kidneys began functioning almost
immediately. His recovery from the surgery was fast.
There were mixed feelings about speeding up the pro-
cess for an organ transplant for a famous person. How-
ever, Kenneth Mimetic, an ethicist at Loyola University
in Chicago, stated, “People should not be punished
just because they are celebrities.” The ethics of giving
a scarce liver to a recovering alcoholic was debated in
many circles. University of Chicago ethicist Mark Siegler
said, “First, he had three potential causes for his liver
failure. But he also represents one of the true American
heroes. Many people remember how he overcame medi-
cal and physical obstacles to achieve what he did. The
system should make allowances for real heroes.”
Mickey Mantle died two months later from cancer.
a. As in the case of the liver transplant for Mickey Mantle,
should the system make allowances for “real heroes”?
Why or why not?
____________________________________________
____________________________________________
b. Some ethicists argue that patients with alcohol-related
end-stage liver disease (ARESLD) should not be
considered for a liver transplant because of the poor
results and limited long-term survival. Others argue
that because alcoholism is a disease, these patients
should be considered for a transplant. What is your
opinion, and why?
____________________________________________
____________________________________________
c. Analyze this case using the Blanchard-Peale three-step
model in Chapter 1.
____________________________________________
____________________________________________
2. Using the Tuskegee syphilis research study at the begin-
ning of this chapter, answer the following questions:
a. Could this type of research study be conducted today?
Why or why not?
____________________________________________
____________________________________________
CHAPTER 11 Ethical and Bioethical Issues in Medicine 277
Put It Into Practice
Select a newspaper article relating to a medical ethics or bioethical issue. Explain the
ethical issue and summarize the article. Discuss the people who could be adversely
affected by this issue.
Web Hunt
Using the website of the Department of Health and Human Services (www.hhs.gov),
examine the statement on “National Organ and Tissue Donation Initiative.” Click on
the site for organ donation and discuss the steps that you would need to take in order
to become an organ and tissue donor.
Critical Thinking Exercise
What would you do to correct the imbalance in health care for low-income people?
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b. Taking into account an average annual inflation rate of
5 percent over a period of 37 years, the settlement of
$37,500 would now be approximately $230,000, the
$16,000 settlement would be $97,000, the $15,000
settlement would be $91,000, and the $5,000 settle-
ment would be $30,000. In your opinion, was this a fair
settlement? Why or why not?
____________________________________________
____________________________________________
c. The public knew about the study, so what should they
have done?
____________________________________________
____________________________________________
d. Many scientists believe that using data from this type
of experiment indirectly condones the experiments.
Others believe that the suffering should not be in vain
and, thus, the data should be used for the good of oth-
ers. In your opinion, how should the data be used that
is obtained from an unethical experiment and how can
we prevent this from happening again?
____________________________________________
____________________________________________
http://www.hhs.gov/
https://www.becker-posner-blog.com/2006/01/should-the-purchase-and-sale-of-organs-for-transplant-surgery-be-permitted-becker.html
https://www.becker-posner-blog.com/2006/01/should-the-purchase-and-sale-of-organs-for-transplant-surgery-be-permitted-becker.html
https://www.becker-posner-blog.com/2006/01/should-the-purchase-and-sale-of-organs-for-transplant-surgery-be-permitted-becker.html
278 PART 3 Medical Ethics
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(May 5), A3.
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When doctors hide medical errors. 2006. New York Times (September
9), 14.
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debate. Newsweek (January 22), 46.
http://bioethics/transcripts/sep03/session2.html
279
Chapter 12
Ethical Issues Relating to Life
Learning Objectives
After completing this chapter, you will be able to:
12.1 Define the key terms.
12.2 Discuss the ethical considerations relating
to artificial insemination.
12.3 Describe the Baby M case.
12.4 Discuss the ethical considerations relating
to surrogate motherhood and contraception.
12.5 List several ethical issues surrounding
sterilization and contraception.
12.6 Explain the importance of Roe v. Wade.
Key Terms
Amniocentesis
Anencephalic
Artificial insemination (AI)
Artificial insemination donor
(AID)
Artificial insemination husband
(AIH)
Child Abuse Prevention and
Treatment Act
Cognitively impaired
Contraception
Embryo
Eugenic (involuntary) sterilization
Eugenics
Fetus
Gestational period
Harvested
Induced abortion
In vitro fertilization (IVF)
Mentally challenged
Preimplantation genetic
diagnosis (PGD)
Safe Haven Laws
Spontaneous abortion
Sterilization
Surrogate mother
Therapeutic sterilization
Unborn Victims of Violence Act
Viable
The Willowbrook State Hospital Case
Historical Case
Willowbrook State Hospital, an institution for the cognitively
impaired or mentally challenged (formerly called mentally
retarded) children on Staten Island, experienced a large num-
ber of infectious diseases among its patients. Conditions at the
hospital were not good, and most children suffered from hepa-
titis, measles, and parasitic and respiratory infections. Hepatitis,
in particular, was a problem as many of the children were not
toilet-trained and the disease was spread through an oral-
intestinal route. Researchers determined that nearly all susceptible
children became infected with hepatitis during their first year at
the hospital.
Between the years 1956 and 1970, 10,000 children were
admitted to Willowbrook Hospital. Of those children, almost 800
were entered into a research project to gain information about
hepatitis with the hopes of eventually developing an immunization
against the disease. All the parents of the children in the research
project granted written consent. The children were injected with the
same strain of hepatitis that was already prevalent in the hospital.
(continued)
280 PART 3 Medical Ethics
The physician-researchers in charge of the project received
intense criticism for subjecting the children to the research. The
researchers defended their actions by stating that:
a. The children that were used as subjects were unharmed
or, at least, not made any more ill than they already were.
b. The children may have even benefitted, because they
were placed on an isolated unit and thus were not
exposed to the other infectious diseases.
c. The children in the study may have had a subclini-
cal infection, which would render them immune to the
hepatitis virus.
d. The children may have been better off as a result of the
research, because the study added to the growth of
information about the disease.
e. All the parents had given their informed consent.
The medical community was outraged about the experiment
and raised the following objections:
a. Cognitively impaired or mentally challenged persons,
especially children, should not be used for research
experimentation.
b. The children are unable to defend or speak for
themselves.
c. There is a greater possibility of abuse with children than
with adults.
d. The parents may have been coerced to grant consent, as
the hospital was full and there was only space to admit
children into the hepatitis unit.
e. The experiment did not appear to be therapeutic.
f. The benefits to the hospital and the community at large
were minimal.
g. The experiments were designed to confirm existing
studies about the effects of gamma globulin immunization
for hepatitis.
h. Researchers withheld from the nonresearch children
(control group) an inoculation that may have been
effective against hepatitis.
Because the 800 children were isolated from other children,
they did not acquire infectious diseases prevalent at the time.
Ultimately, the claim that the children in the research study
benefited from the project was upheld in court.
1. In your opinion, was the injection of hepatitis virus given
to these 800 children in the research project ethical
because their parents gave consent and the children were
apparently unharmed?
2. Who, if anyone, should have spoken out for the rights
of these cognitively impaired or mentally challenged
children?
3. According to this case, the court found that Willowbrook
State Hospital’s study actually benefitted the children.
Do you agree or disagree with this outcome?
Introduction
Issues relating to birth and life are especially difficult because they carry the extra
burden of one’s own personal values. There is widespread disagreement on when life
begins and ends. However, all health care professionals must be willing to understand
the topics and issues discussed by patients, physicians, and the federal court system.
Fetal Development
When Does Life Begin?
An issue that causes great controversy is the question of when life begins. Many people
and various religions believe that life takes place at the moment of conception; there-
fore, any interference with this process, such as abortion or a morning-after pill, is the
wrongful taking of another’s life. The jurist John T. Noonan is convinced that the most
positive argument in favor of life beginning at the time of conception is because of the
new being’s receiving the genetic code at this time. He contends that a being with the
genetic code is human.
Others believe that life does not begin until 14 days after the egg and sperm unite
to form an embryo. The embryo stage is the stage of development between the second
and eighth week. During this time, the embryo is attached to the uterine wall. Some
claim that life begins when the embryo becomes a fetus at about the third month of
SOURCE: Summarized from G. Pence. Classic Cases in Medical Ethics. New York: McGraw-Hill, 1990.
CHAPTER 12 Ethical Issues Relating to Life 281
FIGURE 12.1 Embryo at 5–6 Weeks in Utero
Petit Format/Nestle/Photo Researchers, Inc.
Med Tip
Do not confuse the abbreviation for artificial insemination donor (AID) with the abbreviation
for the disease acquired immune deficiency syndrome (AIDS).
development, or around the ninth week of pregnancy. At this time, the fetus starts to
develop organs and has a pronounced heartbeat and a functioning brain. Still others
claim that life does not begin for the fetus until birth occurs. There are perhaps as many
claims about when life begins as there are weeks in the time before birth occurs, or the
gestational period, which is usually around 40 weeks. See Figure 12.1.
This controversy has created an ethical dilemma for many medical profession-
als. Physicians and other health care workers whose religious or personal beliefs lead
them to oppose abortion cannot counsel women on ending a pregnancy, assist at abor-
tions, or in any way terminate a pregnancy. Their religious beliefs must be respected
by coworkers.
Assisted or Artificial Conception
Some couples desire children and have viable reproductive organs but are unable to
achieve pregnancy. These couples often seek medical assistance through their own
physician or a fertility expert. Single women have also successfully used artificial
insemination. Three of the most recent methods for assisted conception are artificial
insemination, in vitro fertilization, and surrogate motherhood.
Artificial Insemination
Artificial insemination (AI) is the injection into the female’s vagina of seminal fluid
that contains male sperm from her husband or partner who is known as the artificial
insemination husband (AIH), or an artificial insemination donor (AID), by some
means other than sexual intercourse. Single women have also successfully used artificial
insemination.
282 PART 3 Medical Ethics
Artificial insemination has become a very common practice, resulting in thousands
of babies being conceived. There are few legal problems if the husband’s semen is used.
However, in some cases, women have used their deceased husband’s semen, which has
caused problems concerning the child’s rights in relation to the father. For instance,
should the child be entitled to receive Social Security benefits from the deceased father’s
Social Security account? In a 1995 case, a federal administration law judge ruled that
a child conceived from frozen sperm and born more than 11 months after her father’s
death was entitled to receive Social Security benefits.
Consent for Artificial Insemination Donor
An AID is a man who donates his semen for insemination of a woman who is not his
wife. If the woman is married, problems may arise because the donor is unrelated to the
woman. In response, many states have passed laws to address such issues, but none of
these laws have prohibited the use of a donor’s sperm.
Oklahoma was the first state to pass AID legislation that provides guidelines for
both the physician and the hospital regarding the issue of consent. The 1967 Oklahoma
statute specifies that both the husband and wife must consent in writing to the proce-
dure. The reasons for this strict mandate are twofold. First of all, if the physician touches
the woman without her consent, it could result in a charge of battery. Second, the hus-
band might claim that the wife had committed adultery because the semen was not his.
Med Tip
Even if your state does not have a statute regulating AID, it is always wise to require con-
sent in writing from both the husband and wife.
Legal Status of Offspring
The most common legal and ethical concern relates to the legitimacy of the child and
the determination of who is responsible for the child’s support. Several state statutes
suggest that a child is legitimate if the husband consents to the AID. These statutes also
state that the donor is not responsible for the child’s support.
The Oklahoma statute also clarifies that a child conceived through artificial insemi-
nation is legitimate and entitled to all the rights of a naturally conceived child. Thus,
a child born as a result of an AID must receive support from the nondonor husband.
Similarly, California holds the husband responsible for child support, as if he were the
natural father, if he consented in writing to the AID procedure.
Ethical Considerations in Artificial Conception
Many moral and ethical problems surround the issue of AID. AID records, which con-
tain the identity of the sperm donor, are considered confidential and handled in the
same manner as adoption papers; thus, they are not made a part of a public record.
While most states require that only a licensed physician should perform artifi-
cial insemination, this does not guarantee that it will be done in an ethical manner. In
one famous case, a fertility physician was convicted for using his own sperm (James v.
Jacobson, 6 F.3d 233, 4th Cir. 1993).
In the case of a married couple using an AID, assisted conception can cause future
problems for both the couple and the child. The husband may resent his wife and the
child if his sperm was not used. The child may question his or her parentage. Even
though the husband signs the consent before the AID procedure, there is no guarantee
that he will treat the child as his own after it is born.
Record keeping surrounding donor-assisted conceptions is often incorrect or non-
existent. Although there is usually an effort by fertility clinics to keep records relating
to the donors of eggs and sperm, not all people notify the clinics when they become
CHAPTER 12 Ethical Issues Relating to Life 283
pregnant. In some cases, the parents believe that the baby looks like both of them, even
if a donor egg or sperm was used. There is a belief among some members of the medical
community that this may be a healthier approach for the family. Many couples prefer to
keep the details of the baby’s conception between themselves and their doctor.
Med Tip
If the information is available, it is important to note on a child’s health record if the child is
the result of artificial insemination. In some cases, the medical history of the donor is known
and can be added to the child’s record. However, the topic should never be discussed in
front of the child. It is up to the parents to determine if they wish to talk to the child about
his or her heritage.
In Vitro Fertilization
Some couples have viable reproductive cells (ovum and sperm), but conception does
not occur for them using the natural means of sexual intercourse. In this situation
in vitro fertilization (IVF) has been helpful. In this process, ovum and sperm cells are
combined outside of the woman’s body. These cells are grown in a laboratory and later
implanted into the woman’s uterus. Until the early 1990s, this procedure was consid-
ered experimental, but this attitude has changed, and several insurers now pay for the
procedure.
The physician needs to carefully explain the entire procedure to the couple, includ-
ing what happens to the unused cells. In most cases, the unused cells, even when they
are fertilized embryos, are destroyed. There are moral and ethical issues involved in
destroying, or what some people believe to be “killing,” these embryos.
In some cases, the fertilized cells are not destroyed but frozen for possible future
implantation. While several babies have been born using frozen embryos, this proce-
dure has created legal and ethical problems. Custody battles have challenged the “own-
ership” of the frozen embryos. In a 1989 divorce case, a Tennessee couple contested the
ownership of frozen embryos in their divorce proceedings. The trial judge ruled that the
embryos were children, and he awarded custody to the mother. However, the appellate
court granted joint custody. The case then went to the Supreme Court in Tennessee,
which ruled that if the parties did not agree, the embryos should be destroyed. In
this case, the couple did not agree, and the embryos were destroyed (Davis v. Davis,
842 S.W.2d 588, Tenn. 1992).
Some attorneys suggest that a married couple should place their wishes in writing
about what should happen to their embryos in the case of a death or divorce. But there
is still no guarantee that a court would accept the couple’s decision, or that one partner
could enforce an agreement, even if written, against the wishes of the other partner.
Thus, the legal status of these embryos remains unclear.
Surrogate Motherhood
An infertile couple who do not wish to adopt a child may use a surrogate or gestational
mother who agrees to bear the child for them. Conception usually takes place by means
of artificial insemination using the husband’s viable sperm. In vitro fertilization can
also be accomplished without using the surrogate mother’s genes; instead, the ovum of
the wife, if she is fertile, or another woman is combined with the husband’s sperm and
then implanted into the surrogate mother. A contract is established between the couple
wanting the child and the surrogate mother, who must give up the child at birth. The
couple may pay for the medical expenses of the surrogate mother and a fee over and
above the medical expenses; however, because of the U.S. Constitution’s prohibition
284 PART 3 Medical Ethics
on slavery, the baby cannot be bought. Currently, few, if any, laws regulate surrogate
motherhood, and it is legal in most states.
Many surrogate cases end up in court because either the surrogate mother or the
contractual parents changed their mind. This often occurs when the baby is born with
a health problem or defect. In a Washington, D.C., surrogate case, both the surrogate
mother and the contracting couple refused to claim an HIV-positive baby.
A problem arises, too, if the surrogate mother changes her mind when the baby is
born, as occurred in the famous Baby M case. Most surrogacy agreements now stipulate
that the woman who carries the baby cannot also donate the egg.
The Baby M Case
The Baby M case resulted from a surrogate parenting contract between Mary Beth
Whitehead and Mr. and Mrs. Stern. Initially, Mrs. Whitehead had agreed to a surro-
gate motherhood arrangement—in which she would give up the child at birth—with
the Sterns in return for $10,000. A Michigan attorney and a New York infertility clinic
handled this agreement. Mrs. Whitehead was then inseminated with Mr. Stern’s sperm
in 1985. On March 7, 1986, Baby M was born. She was named Sarah Elizabeth by the
Whiteheads and Melissa Elizabeth by the Sterns. The baby was turned over to the Sterns
on March 30. The next day, the Sterns temporarily returned the baby when Mrs. White-
head threatened suicide. On May 5, Mr. Stern went to the Whitehead residence with a
court order to return the baby to his custody. However, Richard Whitehead had escaped
to Florida with the child. Three months later, both the Whiteheads and the child were
located by a private detective and Baby M was returned to the Sterns on July 31. Mrs.
Whitehead was allowed visitation rights pending the outcome of the trial.
The New Jersey Supreme Court eventually granted parental rights to the natural
mother, who had since remarried. However, the court granted the Sterns continuing
custody of the baby, saying it was in the best interests of the child. The decision allowed
overnight stays and vacations with the natural mother. The Sterns did not appeal this
decision (In re Baby M, 537 A.2d 1227, N.J. 1988).
Ethical Considerations with Surrogate Motherhood
Many ethical and legal problems surround surrogate motherhood. Is it right to ask a
surrogate mother to give up all rights to a baby she has carried for nine months? Does,
or should, the child have an emotional or physical link to the surrogate mother? Will
the relationship between the husband and wife be altered if the husband’s sperm is
implanted into another woman? What is the sibling relationship toward the surrogate
baby? Can the contract between the surrogate mother and the couple be enforced?
There have also been “compassionate” cases such as the situation in which a
48-year-old grandmother carried triplets for her daughter who was unable to bear chil-
dren. However, some religions oppose this procedure as immoral.
Other ethical dilemmas relating to surrogate motherhood include the following:
• Potential court battles over custody of a child conceived outside of marriage
• Potential embarrassment for the gestational (surrogate) mother, whose actions
some people have likened to prostitution
• Potential harm to the surrogate mother’s own children when they learn she has
given one child away and received money in return
• Future emotional distress when the child learns that he or she was deliberately
taken away from the natural mother
• Reducing birth to a legal arrangement and the exchange of money
There are two very strong and opposite opinions regarding surrogacy. On the one hand,
opponents of the practice state that they have a moral objection to commercial surrogacy.
They believe it to be the equivalent of baby selling, because the mother is often paid a
CHAPTER 12 Ethical Issues Relating to Life 285
FIGURE 12.2 A Physician Examining a Newborn
fee over and above the costs of the delivery. On the other hand, there are many people
who believe that surrogacy, as a viable alternative for infertile people, is both a pro-
life and pro-family option. For some couples, age restrictions and a limited number of
adoptable children have limited their ability to have a family. In addition, infertility
treatments can take both an emotional and a financial toll on couples (Figure 12.2).
Fertility Drugs
One of the more recent advances in the treatment of fertility problems, or the inability
of the female to conceive, is the use of fertility drugs. These drugs increase female hor-
mones and the production of ova, thus enhancing the ability to conceive a pregnancy.
However, the use of fertility drugs increases the woman’s chance of having a mul-
tiple birth. While the birth of twins to a woman who has taken fertility drugs is not
unusual, there is also a chance that she may conceive as many as eight embryos at a
time. These babies are all underweight and usually are born prematurely. The “baby
boom” resulting from aggressive fertility treatments has resulted in thousands of mis-
carriages, stillbirths, infant deaths, and disabled children. While there have been many
advances in premature care allowing tinier babies to survive, the statistics relating to
the survival of babies in multiple births is ominous. Even if all the babies live, they often
suffer severe lifelong medical problems.
The multiple birth trend began in the 1970s with the advent of fertility drugs. It is
estimated that there are many more sets of twins and triplets born every year as a result
of these drugs. In 1998, the first set of octuplets to all survive even one day were born in
Houston, Texas. They weighed from 10.3 ounces to 1 pound, 10 ounces and only one of
the babies was breathing without a respirator. One of the babies died a week after birth.
Ten years later, in 2008, the second set of octuplets to survive were born to a California
mother, who already had six other children. These babies were all premature and, thus,
required an immense effort in order to survive. They are also at risk for long-term com-
plications such as cerebral palsy. Neither of these mothers wished to have “selective
reduction” in order to increase the chances for the remaining fetuses to survive.
Selective Reduction or Harvesting Embryos
Because there is little chance that all seven or eight babies of a multiple pregnancy
will survive, physicians may recommend that some of the embryos be “harvested” or
removed. This procedure, also called selective reduction, is performed by entering the
uterus and removing some of the embryos, leaving only two or three. The embryos
286 PART 3 Medical Ethics
removed are usually destroyed, although there have been some attempts to freeze
discarded embryos for later use in stem cell research.
Many ethicists speak out against the widespread practice of using fertility drugs.
They have concerns that the result is often some severely damaged babies. While most
physicians believe that it is up to the couples to decide if they wish to have a multiple
birth, many physicians believe that the indiscriminate use of fertility drugs is in danger
of becoming reckless.
On the other hand, one couple had physicians use an embryonic “harvesting”
approach to make sure that they would have a child who did not inherit a gene for
colon cancer. Their combined family had a high incidence of death from this type of
cancer: it had killed his mother, her father, and her two brothers. This couple had used
preimplantation genetic diagnosis (PGD) to screen for this disease. Doctors eventually
examined several of the couple’s eight-cell embryos in a petri dish to determine which
one did not carry a gene for colon cancer. That one embryo was implanted in the mother
and developed into a little girl who was free of the deadly gene.
There are a growing number of parents who are selecting to use PGD to test for
genes that cause diseases that are either untreatable or severe. Diseases that can be
detected with PGD include cystic fibrosis, sickle-cell anemia, and Huntington’s disease.
This type of testing can also be used for less severe problems such as a predisposition
for arthritis or obesity.
Contraception
Contraception stems from two words—contra, or against, and conception, meaning the
union of the male sperm and the female ovum. Therefore, contraception is any action
taken to prevent pregnancy from occurring. Birth control drugs, condoms, a tubal liga-
tion of the female, and a vasectomy of the male are all forms of contraceptive tech-
niques. Abstinence from sexual intercourse and noncoital sex are also means of avoiding
pregnancy. However, many people do not consider contraception and sterilization to
be moral issues. In fact, many ethicists and moral philosophers only address these
issues when discussing the subject of a coerced sterilization, such as the sterilization of
criminals, the cognitively impaired, or irresponsible mothers.
Med Tip
Note that the term “mentally retarded” is no longer an acceptable term. The correct terminol-
ogy includes “mentally challenged,” “cognitively impaired,” and “developmentally delayed”
depending on the particular circumstances. It is wise to determine the correct use of these
terms in your field of practice. In addition, there will most likely be further terminology
changes in order to protect people from discrimination.
In 1965, Connecticut’s law banning contraceptives was challenged in a case known
as Griswold v. Connecticut. Before 1965, Connecticut imposed a criminal penalty on any
physician who prescribed contraceptives for a married woman who the physician
believed would be harmed by a pregnancy. The U.S. Supreme Court struck down the
Connecticut law, declaring that it was the woman’s constitutional right to privacy to use
contraceptives if she wished (Griswold v. Connecticut, 381 U.S. 479, 1965). Justice William
O. Douglas, who wrote the majority opinion, asked the question, “Would we allow the
police to search the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship.” Eight years later, this ruling had a major effect on the Roe v.
Wade decision, which concluded that a woman’s right to privacy included the right to
abortion (Roe v. Wade, 410 U.S. 113, 1973).
CHAPTER 12 Ethical Issues Relating to Life 287
Sterilization
Sterilization is the process of medically altering reproductive organs so as to ter-
minate the ability to produce offspring. It may be the result of surgical intervention
such as a vasectomy (surgical removal or tying of the vas deferens to prevent the
passage of sperm) in the male or a tubal ligation (tying the fallopian tubes) in the
female. While sterilization is usually considered an elective or voluntary procedure,
it can also be therapeutic, incidental, or an involuntary action. Sterilization can be
incidental if the procedure is performed for another purpose, such as in the case of
a hysterectomy for uterine carcinoma. It can also be a side effect of treatments such
as chemotherapy.
Voluntary Sterilization
Voluntary or elective sterilization of competent persons presents few legal problems—
although there are religions that oppose sterilization. Sterilization is becoming the most
popular method of contraception, or birth control, in the United States. However, the
failure of sterilization procedures to prevent births is the most common reason for
“wrongful conception” or “wrongful pregnancy” cases.
Sterilization is sought for a variety of reasons: economic, personal, therapeutic,
and genetic. Some couples, for economic reasons, do not want to assume the additional
expense of raising a child. Other couples just do not want any more children. Therapeutic
sterilization is sought if the mother’s health is in danger. Genetic reasons include the
fear of having a child with a genetic defect.
Currently, no state prohibits the voluntary sterilization of a mentally competent
adult. The sterilization patient receiving Medicaid payments must sign a special consent
30 days before having the procedure. Written consent should always be given before a
sterilization procedure is performed. Implied consent is not sufficient.
Voluntary Sterilization of Unmarried Minors
The voluntary sterilization of unmarried minors poses special problems. Some state
statutes authorize such sterilization if a parent or guardian will also consent. However,
many state statutes forbid sterilization of an unmarried minor. Therefore, most physi-
cians are very reluctant to sterilize a minor without a court order. In addition, most
physicians do not want to perform this procedure on a young person unless there is a
medical reason.
Consent for Sterilization
In an early case relating to sterilization, Skinner v. Oklahoma, the court held that a law
permitting sterilization of habitual criminals violates the equal protection clause of the
Fourteenth Amendment. The court stated that the right to bear children is one of the
basic civil rights of man and is fundamental to the very existence of the human race
(Skinner v. Oklahoma, 316 U.S. 535, 1942). As a result of the case, a patient, even though
a criminal, must grant consent for the surgical procedure of sterilization.
For most surgical operations, the patient’s written consent is all that is necessary.
Without consent, this procedure, or operation, could be considered battery. In cases
of sterilization, many hospitals and physicians also require the consent of the spouse.
Spousal consent should always be encouraged. However, in most cases, performing
sterilization without spousal consent has presented very little legal risk. In a case in
Oklahoma, a husband sued his wife’s physician for performing sterilization without his
consent. The court dismissed the suit and stated that he had not been legally harmed,
because his marital rights do not include a childbearing wife (Murray v. Vandevander,
522 P.2d 302, Okla. Ct. App. 1974).
288 PART 3 Medical Ethics
Currently, no federal law requires consent from one spouse for another spouse’s
sterilization. Because sterilization procedures are permanent, consenting individuals
must be at least 21 years of age.
Therapeutic Sterilization
Therapeutic sterilization may be necessary if the mother’s life or mental health is threat-
ened. In some cases, it is necessary to remove a diseased organ, such as in cancer of the
uterus or ovaries, in order to preserve the patient’s life. This operation would result in
sterilization, but it would be incidental and thus would not be classified as a steriliza-
tion procedure.
Eugenic Sterilization
Eugenic (involuntary) sterilization, considered to be unethical by most people, is the
sterilization of certain categories of persons, such as those who are insane, cognitively
impaired, or epileptic, in order to assure that they won’t pass on the defective gene to
their children. Some states still authorize the involuntary sterilization of wards of the
state who are genetically impaired. The procedure must be proven to the courts to be
in the best interests of the mentally disabled person. However, this practice is no longer
as common as it once was. Recent research demonstrates that most forms of cognitive
impairment are not hereditary.
Between 1929 and 1975 about 65,000 people in the United States underwent invol-
untary sterilization. Many of these people were believed to be unfit to have children
based on criteria that were dictated by state boards. The politicians and scientists who
supported eugenics during those years believed that by sterilizing the cognitively dis-
abled or impaired, the insane, and persons with epilepsy, they would ensure that unde-
sirable traits would not be passed along to future generations. As a result of flawed
thinking, the plan was agreed to by many state legislatures. Eugenics boards, estab-
lished in many states, resulted in many poor white and African American women either
tricked or forced to undergo sterilization. Larry Womble, a state representative from
North Carolina, made this statement about the sterilization of 7,500 people (mostly
women) in North Carolina alone: “This was really genocide. It cut off their bloodline
and took away all their dignity.” There is a movement underway to provide financial
reparations for the eugenics victims who are still alive.
Some state statutes still allow sterilization without the consent of the patient or
the patient’s agent. However, this practice has lost favor. Several states have included
categories of persons, such as sexual deviates and habitual criminals, who may also be
sterilized for the purpose of preventing procreation. Those procedures include provid-
ing a notice to the person or the person’s representative, guardian, or nearest relative;
a hearing by a board designated by statute to perform a review; and an opportunity
to appeal to a court. For instance, in a civil lawsuit brought by a single, deaf mother
of two who was unable to speak, the mother alleged that several social workers and
physicians conspired to sterilize her against her will. The court decided in her favor
(Downs v. Sawtelle, 574 F.2d 1, Cir. 1978).
Med Tip
It is important to remember that anyone who castrates or sterilizes another person without
following the procedures required by law is personally liable (civilly or criminally) for assault
and battery.
CHAPTER 12 Ethical Issues Relating to Life 289
Negligence Suits Related to Sterilization
Many negligence claims involve cases in which a woman has become pregnant after
a sterilization procedure. In an Oklahoma case, a physician assured his patient that
she was sterile after he performed such a procedure in August 1980. She subsequently
became pregnant and delivered a baby in October 1981. She successfully argued
that because of the physician’s negligence in performing the operation, she incurred
$2,000 in medical expenses and would require $200,000 to raise the child. This case
went to an appeals court, which ruled that parents could not recover the expenses
for raising a healthy child, but they were entitled to the expenses resulting from the
unplanned pregnancy (Goforth v. Porter Med. Assoc., Inc., 755 P.2d 678, Okla. 1988).
In some cases, the negligence occurs during the sterilization procedure. For exam-
ple, in McLaughlin v. Cooke, a physician was found negligent for mistakenly cutting an
artery while performing a vasectomy. This error resulted in excessive bleeding and tis-
sue necrosis, and the testicle eventually had to be removed. The physician was found
to be negligent because he did not intervene soon enough to prevent the necrosis from
happening (McLaughlin v. Cooke, 774 P.2d 1171, Wash. 1989).
Ethical Issues Surrounding Sterilization
and Birth Control
Regardless of one’s religious beliefs, health care professionals must realize that steril-
ization and birth control present ethical issues because of the risks surrounding these
procedures. The ethical issues surrounding contraception and sterilization include the
following:
• Eugenic sterilization is particularly abhorrent to most people. It carries a stigma of
attempting to determine who shall live and who shall die. Eugenics is the science
that studies methods for controlling certain characteristics in offspring.
• Is it morally acceptable for public schools, receiving federal and state funding,
to dispense contraceptive devices, such as condoms, birth control pills, and
information?
• Some courts suggest that habitual and violent sex offenders should be ordered to
undergo sterilization. Is this morally and ethically acceptable?
• Some people believe that women who receive public funds such as Medicaid
should not continue to have children by unknown fathers and thus increase the
welfare rolls. Is it ethical and morally acceptable to require these women to seek
sterilization before they are allowed welfare money?
• Many hospitals refuse to allow sterilization procedures on their premises. What
is the ethical implication of this restriction if this is the only hospital in the area?
• Some people believe that mentally incompetent women should be sterilized to
prevent a pregnancy from occurring if men take advantage of them. Many believe
that this is a violation of a woman’s rights.
• Are children being treated as property?
• Is human life being destroyed (e.g., by harvesting of embryos) to achieve live births
of some healthy children?
• Some people believe that issues of contraception can interfere with the relationship
between husband and wife.
These are some of the questions and issues that patients, physicians, other health care
professionals, and policymakers are considering. There are no easy answers. Some people
refuse the use of any contraceptive device for any reason, based on their religious beliefs.
However, not all people hold identical beliefs regarding the ethics of using contraceptives.
290 PART 3 Medical Ethics
Abortion
Abortion has become a major issue in the United States. Even though the number of
abortions declined somewhat during the 1990s, about 1.2 million legal induced abor-
tions are performed every year.
Abortion is the termination of a pregnancy before the fetus is viable, or able to
survive outside the uterus. (There have been some cases of viable aborted fetuses with
birth defects who were allowed to die.) An abortion may be spontaneous or induced.
A spontaneous abortion is one that occurs naturally without any interference. It is also
referred to by the layperson as a miscarriage. A spontaneous abortion can result from
an illness or injury of the mother, her physical inability to bear a child, or other causes.
An induced abortion, or one that is caused by artificial means such as medications or
surgical procedures, is used to save the life of the mother and/or to destroy the fetus.
An induced abortion is also used to destroy life. The laws have focused only on induced
abortions performed for the purposes of destroying the fetus.
Under common law in the 19th century, abortions performed before the first fetal
movements, which occur at or about six weeks, were not illegal. However, legal and
illegal abortions were being performed that were painful and often resulted in the
mother’s death. The AMA adopted an antiabortion position in 1959, which was quite
influential and resulted in political action to control abortions. States began passing
statutes that made induced abortions a crime, whether they occurred before or after
fetal movements, unless they were performed to save the mother’s life.
In the 1960s and 1970s, states amended these laws to permit induced abortion
only if the physical or mental health of the mother was threatened, if the child was at
serious risk of congenital defects, or when the pregnancy was the result of a rape or
incest. More laws continued to be passed, and in 1973, the major case affecting abortion,
Roe v. Wade, was tried.
Roe v. Wade
In Roe v. Wade, the U.S. Supreme Court declared a Texas criminal abortion law, which
prohibited all abortions not necessary to save the life of the mother, to be a violation
of the woman’s right to privacy under the Fourteenth Amendment of the Constitution
(Roe v. Wade, 410 U.S. 113, 1973). Jane Roe (a pseudonym), a single pregnant woman,
challenged the District Attorney of Dallas County, Henry Wade, when she believed
that her “right to privacy” under the Fourteenth Amendment was violated by a Texas
antiabortion statute. This 1973 case gave strength to the argument that a woman should
be allowed the right to have privacy over matters that relate to her own body, includ-
ing pregnancy. While the Supreme Court refused to determine when life begins, it did
recognize that states would have an interest in protecting the potential lives of their
citizens. Therefore, the Court tried to clarify the extent to which states can regulate and
even prohibit abortion. To set up guidelines, the Supreme Court adopted a three-step
process relating to the three trimesters of pregnancy:
1. First trimester—During the first three months of pregnancy, the decision to have an
abortion is between the woman and her physician. The state may, however, require
that this physician be licensed in that state. During the first trimester, the fetus is
generally not viable, or able to live outside of the uterus.
2. Second trimester—During the second three months of pregnancy, the court deter-
mined, “the State, promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health.” If the fetus is viable, which occurs at around six months, the
Supreme Court believes the states have a compelling interest in the life of the
unborn child, and so abortions could be prohibited at this stage except when nec-
essary to preserve the life or health of the mother.
CHAPTER 12 Ethical Issues Relating to Life 291
3. Third trimester—The Supreme Court determined that by the time the final stage
of pregnancy (seventh through the ninth month) has been reached, the state
has a compelling interest in the unborn child. This interest would override the
woman’s right to privacy and, therefore, justify stringent regulation of and
even prohibit all abortions except to save the life of the mother or to protect
maternal health.
Historical Progression of Cases Affecting Abortion
Since Roe v. Wade, a steady flow of abortion cases have reached the Supreme Court to
challenge that ruling. Some of these Supreme Court abortion rulings were victories for
pro-choice groups, and some of them were victories for pro-life groups. Some could be
interpreted as wins or losses for either side. The following briefly summarizes some of
the cases that resulted in major changes to the Roe v. Wade decision.
In a 1976 case, the Supreme Court ruled it unconstitutional to require a pregnant
woman to obtain her husband’s consent, or if she was a single minor under the age of
18 to obtain parental consent in writing before she could obtain an abortion. However,
the Court failed to determine any guidelines for obtaining parental consent if the minor
is too immature to understand the nature of the procedure (Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 1976).
The following year, the Supreme Court examined a Connecticut statute that denied
Medicaid payment for first-trimester, medically necessary abortions. In this case, the
Court considered the argument that because Medicaid covered pregnancy and child-
birth expenses, states were obligated to subsidize nontherapeutic abortions. However,
the Supreme Court voted six to three that states may refuse to spend their public funds
to provide nontherapeutic abortions (Maher v. Roe, 432 U.S. 464, 1977).
In 1980, the Supreme Court upheld the Hyde Amendment, which prohibits the
use of federal funds to pay for Medicaid abortions. The Court ruled that the states are
not compelled to pay for Medicaid recipients’ medically necessary (therapeutic) abor-
tions. However, the Court allowed states to fund these abortions if they wished to do so
(Harris v. McRae, 448 U.S. 297, 1980).
The next year, the Supreme Court upheld a Utah statute requiring the physician to
notify, if possible, the parents or guardian before an abortion is performed on a minor.
In H. L. v. Matheson, a physician had advised the minor patient that an abortion would
be in her best interests, but that he would not perform the procedure without her par-
ents’ consent. The Court ruled that a state statute could require a parental notice, when
possible, and that this did not violate the constitutional rights of the immature minor.
However, the Court also declared in this case that a state may not legislate a blanket
power for parents to veto their daughter’s abortion (H. L. v. Matheson, 450 U.S. 398, 1981).
In 1990, the Supreme Court upheld the federal statute that prohibited federally
funded family planning clinics from giving abortion advice (Rust v. Sullivan, 500
U.S. 173, 1991).
The most significant case was the 1992 Planned Parenthood of Southeastern
Pennsylvania v. Casey, in which the Supreme Court examined Pennsylvania’s law that
restricted a woman’s right to abortion. This case was important because it rejected the
trimester approach used in Roe v. Wade, which limited the regulations states could issue
on abortion based on the stage of the fetus’s development. Instead of the trimester
approach, the Court looked at the abortion rules in terms of whether they placed “an
undue burden on the mother.” In this case, undue burden meant placing a substantial
obstacle in the path of a woman’s seeking an abortion before viability of the fetus. The
Court ruled that it is an unconstitutional/undue burden to require spousal consent
(Planned Parenthood of Southeastern Pennsylvania v. Casey, 50 U.S. 833, 1992). This ruling
has been upheld in several subsequent cases in which the husband could not prevent
the mother from aborting the child.
292 PART 3 Medical Ethics
In 2007, the Supreme Court upheld the federal ban on partial-birth abortion, passed
by congress and signed by President Bush in 2003. It was a significant case because it
upheld the ban even though it made no exception for protecting a woman’s health
(Gonzalez v. Carhart, 550 U.S. 124, 2007).
Incompetent Persons and Abortion
Difficult ethical issues surround situations in which incompetent persons may be sub-
jected to unplanned or unwanted pregnancies. Many believe that if the incompetent per-
son were able to speak for herself, she would not wish to be pregnant as a result of incest
or rape. In some of these cases, abortions have been performed using a welfare agency
as the guardian ad litem (a guardian appointed by the court to speak on behalf of the
incapacitated party). In a 1987 case, a profoundly cognitively impaired woman became
pregnant as a result of a sexual attack while she was a resident in a group home. The
attacker was unknown. In this case, the guardian ad litem, rather than the girl’s mother,
spoke on behalf of the patient, because the mother and daughter had little contact. The
family court authorized an abortion in this case (In re Doe, 533 A.2d 523 R.I., 1987).
“Plan B” Contraceptive Pill
The “morning after” or “Plan B” pill for use as a contraceptive, particularly in the case of
rape, has raised many ethical questions. This pill contains a high dose of a contraceptive
that can prevent a pregnancy if taken within 72 hours following intercourse. It works
by releasing hormones that prevent ovulation and the implantation of a fertilized egg.
There is divided opinion about the use of this pill by religious organizations and rape
crisis counselors. Many will only allow the drug to be administered to nonovulating
women. In most states, there is a requirement that all pharmacies carry this drug and
allow it to be sold “over the counter,” without a prescription. In some conservative
states, such as Arkansas, lawmakers passed a law that protects pharmacists from hav-
ing to fill the prescription for the “morning after” pill based on moral reasons. Rape
crisis counselors believe that it is morally indefensible to deny this pill to rape victims.
Opposition to Abortion
People have very strong, and often differing, viewpoints about abortion. Many people,
because of their religious and moral beliefs, believe that Roe v. Wade protects the “person-
hood” of the mother and neglects the “personhood” of the fetus. According to this view-
point, abortion is killing a human being and thus constitutes murder. The opponents of
abortion believe that while Roe v. Wade protected a woman’s right to choose an abortion
under the Fourteenth Amendment, the fetus was not covered under this amendment. Roe
v. Wade does not declare when human life begins. An initiative is underway in some state
legislatures to include a definition of a person as human life from the time of conception.
In 2004, the U.S. Congress passed a law called the Unborn Victims of Violence Act.
This law is designed to provide legal penalties for any harm that is done to an unborn
child at federal facilities such as military bases or in crimes that cross state lines. The
law treats all unborn life as a person.
Almost 40 states have statutes that grant varying degrees of legal standing to a
fetus. These are statutes that relate to criminal matters, such as murder and homicide,
and permit civil wrongful-death suits.
Employee’s Right to Refuse to Participate in Abortions
Hospital employees have the right to refuse to participate in performing an abortion,
and a hospital cannot dismiss the employee for insubordination. An employee can
abstain from assisting in an abortion procedure as a matter of conscience or religious
conviction. (See conscience clause in Chapter 4.)
CHAPTER 12 Ethical Issues Relating to Life 293
Med Tip
Health care professionals must keep in mind that people have very strong, and often
differing, viewpoints about abortion. Their viewpoints must be respected even when they
differ from the employee’s viewpoint. However, no one should be required to participate
in an action, such as abortion, if it is against his or her beliefs.
Funding for Abortion
Funding for abortion procedures has been another area of great controversy. Under the
Hyde Amendment, the U.S. Congress limited the types of medically necessary abortions
for which Medicaid monies may be spent.
There are many arguments both for and against abortion. Pro-choice advocates argue
that women have the right to choose what to do with their bodies. They argue that legal-
ized abortions are safer for the woman. They cite statistics showing that deaths from ille-
gal abortions—and there were thousands of deaths before Roe v. Wade—have diminished
to just a few deaths when they are performed correctly in a hospital or clinic. They further
argue that a woman has the right to an abortion when she is the victim of rape or incest.
The right-to-life advocates argue that no one has the right to deny a life. They
believe that the embryo, no matter how young, is a human life; that it is morally wrong
to take a human life; and that the right of the unborn child should take precedence over
the right of the mother not to be pregnant. They also argue that those who carry out an
abortion diminish humanity for everyone involved, including the mother, the physi-
cian, and the health care professionals.
Whenever health care reform is discussed in Congress the question of funding
abortion is always a contentious issue. Some members of Congress will not approve
any legislation that includes using federal funds for abortions.
Ethical Issues Surrounding Abortion
Abortion raises a multitude of ethical issues, even for those who believe abortion, in
general, should be legal.
Baby Doe Regulations
In the 1980s, a tiny baby in Bloomington, Indiana, was born with Down syndrome
and other disabilities. This baby, known as Baby Doe, was born with a hole between
the trachea and the esophagus, which made normal feeding impossible. The parents
refused to grant consent for surgery that would correct the blockage. The hospital went
to court to get permission to perform the life-saving surgery on the baby’s esophagus.
The court refused to grant the request, stating that it was the parents’ right to make
medical decisions for their baby. However, the court did appoint a public guardian who
could appeal the ruling on behalf of the baby. Baby Doe died before the public guardian
was able to take the case to the Supreme Court.
This was considered to be a case of withholding treatment rather than of mercy
killing or euthanasia, because food, water, and repair of the medical condition were
withheld. The belief is that the treatment would not have been withheld if the baby
had been less disabled.
The Baby Doe case became national news. The public protested about withhold-
ing treatment from a disabled (Down syndrome) infant. As a result, Congress enacted
legislation, the Child Abuse Prevention and Treatment Act of 1987, that prohibited the
withholding of medical treatment solely because the infant was disabled. The govern-
ment entered the picture with legislation preventing any health care providers, such as
hospitals, from receiving federal financial aid if they discriminated against handicapped
294 PART 3 Medical Ethics
infants. In other words, the same medical treatment that is given to nonhandicapped
infants must also be given to handicapped infants. Because most, if not all, hospitals
receive some government aid, this law went into effect in virtually all hospitals. Notices
about the Baby Doe regulation must now be posted in all maternity and pediatric wards
as well as in neonatal intensive care units. In addition, a hotline telephone number is
also posted so that anyone can call with information about life-saving measures being
withheld from a baby.
This law has been changed slightly to allow parents to have some say in their
handicapped infant’s medical treatment. An unexpected side effect of the Baby Doe
regulation is that some mothers are opting for a late-term pregnancy abortion out of
fear that they would have to turn over the decisions regarding their handicapped infant
to the courts.
There are many ethical questions that arise out of Baby Doe regulations. For
example:
• Should strangers become the advocates for handicapped infants’ medical treat-
ments if they are in disagreement with the parents’ decisions?
• Would it be better to spare the handicapped infant a life that may include suffering
and future surgical procedures?
• Should all modern technology that is available to save life be used no matter what
the consequences for the child?
In a more positive outlook, it should be noted that there are thousands of children born
with Down syndrome who are able to live a full and meaningful life.
In the Matter of Baby K
Baby K was an anencephalic (missing a brain and spinal cord) infant whose mother
requested that her baby daughter receive a mechanical ventilator to assist with the baby’s
breathing. The doctors had recommended that life-saving measures not be used because
the infant could not see, hear, or interact with her environment. They further recommended
that Baby K only be given nutrition, in fluid forms, and kept warm. Baby K survived lon-
ger than other anencephalic children, and even though unconscious, was kept alive in a
nursing home. She had several episodes of difficulty breathing and was transferred to a
hospital for treatment. Both the hospital and Baby K’s father joined in a lawsuit against
the mother to request that aggressive life-saving measures be discontinued for the child.
Baby K’s mother disagreed with the hospital’s wishes to withhold life-saving
measures such as respiratory assistance. She requested that the hospital follow the
guidelines of the federal law, Emergency Medical Treatment and Active Labor Act
(EMTALA), which prohibited hospitals from “dumping” patients who are unable to
pay for their care. The court upheld the mother’s request. It stated that, while they
understood the physicians’ dilemma when faced with having to provide medical
care that they consider to be morally and ethically incorrect, nevertheless, the statute
(EMTALA) had to be upheld (Matter of Baby K, 16 F.3d 590, 4th Cir. 1994).
Conscience Clause in Contraception and Abortion
Some health care professionals have embraced a conscience clause by refusing to provide
medication or care when their religious beliefs are challenged. In Texas, a pharmacist
refused to sell the morning-after pill to a rape victim. In Chicago, an ambulance driver
refused to drive a patient for an abortion. And in California, a gay woman seeking
artificial insemination was turned away by fertility specialists. These cases have
caused legal and even political battles. The patients filed lawsuits and complaints, and
the workers cited religious discrimination after being fired or disciplined. Patient
advocates, and some members of the general public, point out that medicine has a
CHAPTER 12 Ethical Issues Relating to Life 295
long tradition of healers putting the needs of their patients first. There is no simple
answer to this dilemma.
Some anesthesiologists are refusing to assist in sterilization procedures. And occa-
sionally a respiratory therapist has refused to remove ventilators from terminally ill
patients. Some gynecologists refuse to prescribe contraceptives. In every case, there is
some other health care professional who can provide the patient service. But hospital
administrators, physicians, lawyers, ethicists, and patient advocates are all trying to bal-
ance each person’s conflicting rights as well as defuse this contentious situation. There
are many observers who say that a patient’s needs must come first. On the other hand,
the rights of employees to practice their religion are also of paramount importance. At
present, there is no easy or clear answer to this dilemma.
Med Tip
Always clarify your own values and beliefs with your employer when you are hired. Every-
one has the right to religious freedom. Most employers want to know ahead of time if they
need to make adjustments to assignments.
Genetic Counseling and Testing
The science of genetics, discovered by Austrian botanist and priest Gregor Mendel, is
the study of heredity and its variations. It describes the biological influence that parents
have on their offspring.
FIGURE 12.3 Genetic Counseling with Prospective
Parents
Med Tip
The study of genetics should not be confused with eugenics. Eugenics, the science that
studies methods for controlling certain characteristics in offspring, is also called selective
breeding. Hitler practiced eugenics when he tried to eliminate the Jewish population in
favor of an Aryan one.
Genetic counseling is usually performed by geneticists who have a master’s or
higher degree, or by physician geneticists who are medical doctors with special train-
ing in genetics. Genetic counselors meet with a couple, usually one-on-one, before
pregnancy occurs to discuss the potential for passing on a defective gene (Figure 12.3).
296 PART 3 Medical Ethics
Disorder Characteristics
Cooley’s anemia Rare form of anemia or reduction of red blood cells. More common in people of Mediterranean origin.
Cystic fibrosis Disorder of exocrine glands causing an excessive production of thick mucus. Affects organs such as
the pancreas and respiratory system.
Down syndrome Moderate to severe cognitive impairment. Child may have a sloping forehead, flat nose, low-set eyes,
and general dwarfed physical growth. More commonly seen when the mother is over 40. However, not
all forms of Down syndrome are hereditary.
Duchenne muscular dystrophy A progressive wasting-away of muscles. May also have heart and respiratory problems. Caused by a
recessive gene and more common in boys.
Huntington’s chorea A condition in which there are bizarre involuntary movements. May have progressive mental and
physical disturbances.
Phenylketonuria (PKU) A metabolic disorder in infants that, if untreated, can result in cognitive impairment. Is treated with a
special diet. Most states require a screening test for PKU. Affects mainly Caucasians.
Retinoblastoma A cancerous tumor of the eye that is fatal if untreated.
Sickle-cell anemia Severe, chronic, incurable disorder that results in anemia and causes joint pain, chronic weakness, and
infections. Occurs more commonly in people of Mediterranean and African heritage.
Tay-Sachs disease A deficiency of an enzyme leading to cognitive impairment and blindness. Transferred by a recessive
gene and more commonly found in families of Eastern European Jewish descent. Death generally
occurs before the age of 4.
Table 12.1 Hereditary Disorders
Med Tip
Genetic testing is not always performed for the purpose of termination of a pregnancy. In
many cases, parents are better able to plan for the care of the child if they have advance
information about a potential for genetic defects.
Genetic counseling has emerged as a legitimate means to identify couples who
are at risk of passing on a genetic disease to their offspring. Over 2000 human diseases
have been identified as having a genetic factor, including Tay-Sachs disease, sickle-cell
anemia, and cystic fibrosis. In these recessive gene diseases, each parent must pass
on a copy of the defective gene in order for the disease to be produced in the child.
Therefore, persons who carry the recessive gene for these disorders can be tested before
marriage, with the option of making a decision to remain childless. Other conditions
for which genetic testing is available include Huntington’s chorea, retinoblastoma,
Down syndrome, and phenylketonuria (PKU). These and other hereditary disorders
are explained in Table 12.1.
Prenatal Testing
Patients believe they have a right to be informed of their medical conditions. A better-
educated public with greater access to medical information via the Internet is now
demanding to know the results of testing.
The most common means of genetic testing during a pregnancy is through
amniocentesis. In this test, the physician uses a needle to withdraw from the uterus a
small amount of amniotic fluid that surrounds the fetus. This fluid is tested for the pres-
ence of genetic defects such as Tay-Sachs disease and Down syndrome. The physician
carefully introduces the needle into a portion of the uterus in which there is the least
likelihood of touching the fetus. Before the procedure, physicians must discuss all the
risks with the patient, such as the risk of damage to the fetus and of causing early labor.
A consent form must be signed, as the procedure is invasive.
CHAPTER 12 Ethical Issues Relating to Life 297
Conceiving Donor Siblings
The U.S. Constitution protects a fundamental right to procreate, and any limitation on
the right must, of necessity, be very narrow. Ethicists have looked for a solution to the
problem of women conceiving a donor sibling whose organs and tissues can be used to
save the sibling’s life, and then aborting the fetus if it is not a match. One viable solution
is to protect the right of the donor sibling to live by withholding the results of tissue
tests until after the baby is born.
This is a difficult ethical dilemma for many people who believe that an embryo is
a live human being and harvesting them is a means of destroying their life. This gray
area of ethics does not seem to have a clear answer at present.
The Uniform Anatomical Gift Act has implemented legal safeguards to prevent
women from becoming pregnant with the specific purpose of aborting the fetus to sell
the fetal tissues or organs or donate them to a relative. (See Chapter 5 for more informa-
tion on the Uniform Anatomical Gift Act.)
Genetic Testing of Newborns
It is estimated that between 3 and 5 percent of all newborns have a hereditary or con-
genital disorder, and one-fourth of all hospitalizations and deaths among babies are
because of these disorders. Routine genetic screening on newborns has become stan-
dard in many hospitals.
Almost all states have passed laws requiring PKU testing on infants immediately
after birth so that treatment, such as dietary restrictions, can begin right away. PKU is
a relatively rare (5.4 per 100,000 infants) metabolic disease that accounts for only 0.8
percent of all cognitively challenged institutionalized people. Without this treatment,
PKU babies face cognitive impairment, and even death.
In addition, federally funded voluntary screening centers exist to screen for sickle-
cell anemia. Because of the growing use of artificial insemination, donors of semen are
routinely screened to rule out genetic diseases.
Ethical Questions Regarding Genetic Testing
Genetic testing and counseling has provided assistance for parents who wish to make
rational decisions regarding their family planning. Some parents want to avoid the birth
of children with crippling impairments such as with Duchenne muscular dystrophy,
which is caused by a recessive gene, and more commonly found in boys.
Medical researchers believe that if all people who are carriers of diseases caused by
a dominant gene, such as Huntington’s disease, produced no children with the disease,
then the disease would become eradicated. Many ethical and moral questions arise
when examining these issues:
• Do parents have the right to be informed of all the results of a genetic test? The
duty of the physician is to inform the patient of all the results of testing. This is
especially difficult for some physicians who oppose abortion, because they know
that there is a likelihood the parents may seek an abortion if the testing indicates
a defective baby.
• It is now almost routine to tell patients that genetic testing might uncover unex-
pected unpleasantness, such as the discovery that they might be at risk for
Alzheimer’s disease, but that they will be given all the information if they ask.
Occasionally, a case of “misidentified paternity” (incorrect identity of the father)
is discovered in this type of testing. Researchers at the University Hospital of
Cleveland estimate that 1 to 10 percent of all people may have misidentified
paternity.
298 PART 3 Medical Ethics
• Does a person have a right to have children who are likely to be impaired? For
example, after having a series of tests, including an amniocentesis, a woman may
be informed that the baby she is carrying will be born with a neural tube defect
such as spina bifida. Because this child will have a difficult life, including painful
surgeries, the mother may be advised to abort. But many people who are opposed
to abortion would elect to deliver the baby and spend the time during pregnancy
preparing to care for a handicapped child. There is no legal sanction either for or
against abortion in this case. Each decision must be based on the free choice of the
parents.
• Is society ever justified in requiring people to submit to genetic screening and
counseling?
• Do a small number of people with the potential for a disease or genetic condition,
such as PKU, justify the expense of testing all babies? (PKU is a genetic disorder in
which the body cannot process amino acids.)
• Should public funds be used to pay for genetic testing when the parents are unable
to pay? Many people believe that indigent patients should have the same access
to genetic testing that the rest of the population has. However, if genetic problems
are discovered, according to the Hyde Amendment, public funds cannot be used
to pay for an abortion.
• Should we limit the types of diseases or disorders that can be tested for, using
a test such as PKU? For example, is using the test to determine a predisposi-
tion for cancer of the same importance as testing for mild skin conditions and
obesity?
• These and other difficult questions face the parents and physicians every time
genetic testing is performed.
Wrongful-Life Suits
Wrongful Life
In some cases, a baby is born with severe defects that greatly affect the quality of life
for the child. A wrongful-birth claim or lawsuit is often brought against a physician
or laboratory by the parents of a child born with these genetic defects. The parents
may claim that they were not informed in a timely fashion that their child might have
defects. They believe that this lack of information meant that they did not have the
option of deciding whether to abort the child.
Some lawsuits are also brought when sterilization has failed. Parents have brought
lawsuits against a physician or laboratory for breach of duty when it negligently failed
to inform the parents of an unfavorable genetic test result or a failed sterilization. In
general, the courts have rejected wrongful-life lawsuits brought against hospitals or
physicians by children with genetic defects who claim they were injured by the action
of being born. The courts reason that it is impossible to assess a dollar amount of dam-
ages for being alive as opposed to being dead.
Smith v. Cote is an example of such a case. The court awarded damages for wrong-
ful birth but not for wrongful life. The court ruled that the physician was negligent by
failing to test for the mother’s exposure to rubella and to inform her of the potential for
birth defects. Rubella in pregnant women during the first trimester can cause defects,
such as deafness, in the fetus. In this case, the mother claimed that she might have
sought an abortion if she had known all the facts surrounding her pregnancy. However,
the court refused to award the child damages for the “wrong” of being born (Smith v.
Cote, 513 A.2d 341 N.H., 1986).
CHAPTER 12 Ethical Issues Relating to Life 299
Med Tip
It is important for all health care workers to take the issue of their own health seriously. They
need to alert their employer if they contract a contagious disease such as rubella, which could
cause serious complications if a pregnant patient or coworker were to become infected.
Med Tip
The best method to avoid a wrongful conception/wrongful pregnancy lawsuit is for the
physician to advise the parents, in writing, that there are always a small number of failures
in these procedures.
Wrongful Conception/Wrongful Pregnancy
A 1991 case in New Mexico presented many ethical concerns. In this case, the parents of
a healthy baby were awarded the cost of raising the child to adulthood when they con-
ceived a child after an unsuccessful tubal ligation (sterilization). The physician ligated
(tied) only one of the mother’s tubes and failed to inform her of this negligence (Lovelace
Medical Ctr. v. Mendez, 805 P.2d 603, N.M. 1991).
In another case, a geriatric mother (a medical term for a pregnant woman over
age 35) who was not advised by her doctor that her age put her unborn child at a greater
risk for birth defects, sued when she gave birth to a child with Down syndrome. The
court found in favor of the family to seek financial damages for the added cost of raising
a child with a disability. Wrongful-birth lawsuits are increasingly awarding financial
damages to parents. But wrongful-life lawsuits, in which the disabled children sue the
physicians, have generally been rejected by the courts.
Safe Haven Laws
The Safe Haven Laws create a safe alternative to leaving unwanted babies in unsafe
places such as on doorsteps and in dumpsters. These laws allow a parent to voluntarily
give up custody of an infant 31 days or younger to a hospital emergency department
(ED) or a police or fire station. For example, in Connecticut an ER nurse will talk to the
parent about the child’s medical history. The ER will also give the parent information on
how to contact the Department of Children and Families (DCF) services. The infant is
then turned over to DCF who are required by law to contact both parents of its intent to
keep custody of the child and seek termination of parental rights. If the parents’ names
or addresses are unknown then DCF will place a newspaper notice. The parent(s) can
change their mind and try to regain custody, but they must act quickly and make a
request to the court for an attorney to represent them. The court will schedule a hearing
within 30 days of DCF’s application and the termination of parental rights can be granted
at the first hearing. DCF will attempt to place the child for adoption within 30 days.
These laws are meant to protect babies whose parent(s) are unable to care for them.
The laws do not provide protection to parents if abuse or neglect has already occurred.
It also does not allow for the abandonment of older children. States vary on administra-
tion of these laws.
Med Tip
It’s important to know the Safe Haven Law in your state. They vary somewhat from state
to state.
300 PART 3 Medical Ethics
“Do the Right Thing”
As a health care professional, perhaps the best way to make ethical decisions regarding
how best to care for your patients is to carry this admonition always in the back of your
mind: “Do the right thing.” This can only be the “right thing” as you sincerely see it. If
this presents any kind of difficulty regarding your duties as defined by your employer,
of course you will discuss the matter to explain your point of view and to be sure that
you can do your job according to your conscience. Here is an example of a situation
when a nurse, faced with an emergency that required action that potentially meant life
or death for her patients, followed her conscience and common sense to do the right
thing (based on a true story):
Anna, a young, recently graduated nurse, was asked to take over the intensive care
unit (ICU) on the second floor while the head nurse took a lunch break. The young
nurse had only been on the ICU unit for a couple of weeks, but she had been well
trained and loved working there. It was a small unit with only five patients at the
present time. Two patients were young and three were quite elderly. As she started to
begin taking vital signs on her patients, an electronic message was broadcasted to all
the nursing units to prepare to evacuate because of a fire on the floor below. Anna could
smell the smoke and some of the lights were already going off.
This nurse had received training in what to do in the case of a hospital emergency.
In fact, the instruction that the hospital gave was to use an emergency system in which
the younger, healthier patients were to be evacuated first. And, for the first time in her
short career, she listened to her own idea of “doing the right thing.”
According to her hospital training, Anna immediately began to prepare her patients
for evacuation by placing extra blankets, medications, and medical charts on their beds.
She quickly wrapped each patient, and their medical supplies, into a blanket. Anna
knew that she was on the second floor of the hospital and that there was a large flat roof
right outside of her windows. Her intent was to quickly and gently place the patients
on the floor, and lift them onto the flat roof through the window.
Just as she was ready to open the window, the Fire Department arrived and “saved
the day.” They commented on her ability to “do the right thing.” All the patients, young
and old, were saved.
Chapter Review
Points to Ponder
1. What do you say to a patient who asks for family
planning advice?
2. How would you react to a coworker who tells you she
has recently had an abortion?
3. Can you relate to the dilemma faced by a surrogate
mother who is giving up her baby to the contractual
parents? Why or why not?
4. What would you say to a person who does not share
your religious or moral views concerning abortion?
5. What are some of the daily issues faced by parents
who have children born with hereditary disorders?
6. In your opinion, should cells or tissue from aborted
fetuses be used in the treatment of diseased or
disabled persons? Why or why not?
12
CHAPTER 12 Ethical Issues Relating to Life 301
Discussion Questions
1. Discuss the ethics of minors having the same access to
contraceptives as adults.
2. Should there be mandatory testing for genetically
transmitted diseases? Why or why not?
3. Discuss the history of U.S. Supreme Court decisions
relating to abortion since Roe v. Wade.
4. What are the ethical implications relating to
abortion?
5. What are some of the ethical implications relating to
fertility drugs?
6. Discuss the ethical implications relating to an artificial
insemination donor.
7. How is the traditional notion of family challenged by
the new reproductive technologies?
8. Should genetic counseling include recommendations
by the medical personnel?
Review Challenge
Short Answer Questions
1. Why are the terms “cognitively impaired” or “men-
tally challenged” preferred over the term “men-
tally retarded” for children with autism or Down
syndrome?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What are some of the ethical issues surrounding
sterilization?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. What consent is required for sterilization?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. Why is selective reduction or the “harvesting” of
embryos used?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What are some of the considerations when using a
surrogate mother?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. What is in vitro fertilization (IVF)?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. What is the difference between an embryo and a fetus?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Who should make the life and death decisions
of severely disabled babies? Discuss your answer.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
302 PART 3 Medical Ethics
9. In your opinion, is it ever proper to hasten the death
of a severely disabled baby? Explain your answer.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
10. Discuss the Child Abuse and Prevention Treatment
Act.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. fetus
_____ 2. embryo
_____ 3. in vitro fertilization
_____ 4. anencephalic
_____ 5. genetics
_____ 6. AID
_____ 7. AIH
_____ 8. surrogate
_____ 9. gestation period
_____ 10. viable
COLUMN B
a. time before birth during the development of the fetus
b. artificial insemination by husband
c. born without a brain and spinal cord
d. able to survive
e. biological influence of parents on their offspring
f. second to twelfth week of development
g. artificial insemination by donor
h. ovum and sperm combined outside of the mother’s body
i. substitute
j. third month of development until birth
Multiple Choice
Select the one best answer to the following statements.
1. The current laws relating to artificial insemination
a. do not forbid artificial insemination.
b. state that the donor father must provide a portion
of the child’s support.
c. provide for the records that relate to the donor to
remain open.
d. clarify the child’s legitimacy.
e. all of the above.
2. The Baby M case is an example of
a. problems encountered with fertility drugs.
b. problems relating to the practice of eugenics.
c. problems encountered as a result of the use of a
surrogate.
d. problems encountered because of involuntary
sterilization.
e. problems encountered as a result of genetics.
3. An ethical issue or issues relating to contraception is/
are
a. dispensing contraceptives in schools receiving
federal funds.
b. requiring sex offenders to undergo sterilization.
c. providing contraceptives for women on Medicaid.
d. sterilization of mentally incompetent women.
e. all of the above.
4. A miscarriage is the same thing as a/an
a. induced abortion.
b. spontaneous abortion.
c. drug-induced abortion.
d. conscience clause.
e. eugenics.
CHAPTER 12 Ethical Issues Relating to Life 303
5. A genetic disorder that causes severe joint pain,
chronic weakness, and infections and is more
prevalent in people of African heritage is
a. Tay-Sachs disease.
b. retinoblastoma.
c. cystic fibrosis.
d. sickle-cell anemia.
e. Cooley’s anemia.
6. Genetic testing of the newborn is required by law for
a. Tay-Sachs disease.
b. phenylketonuria.
c. retinoblastoma.
d. Down syndrome.
e. Cooley’s anemia.
7. A disease that could cause serious birth defects for an
unborn child if the pregnant mother is exposed to it
during her pregnancy is
a. Down syndrome.
b. Huntington’s disease.
c. cystic fibrosis.
d. rubella.
e. retinoblastoma.
8. Withdrawing a small amount of amniotic fluid from
the uterus for genetic testing is called
a. induced abortion.
b. eugenics.
c. amniocentesis.
d. spontaneous abortion.
e. drug-induced abortion.
9. A person that is appointed by the court to defend a
lawsuit on behalf of an incapacitated person is a/an
a. donor.
b. surrogate.
c. AID.
d. AIH.
e. guardian ad litem.
10. Tay-Sachs disease
a. results from an enzyme deficiency.
b. is more common among people of Eastern Euro-
pean descent.
c. is curable if diagnosed early.
d. a, b, and c.
e. a and b only.
Discussion Cases
1. Using the Willowbrook State Hospital Case discussed
at the beginning of the chapter, respond to the following
questions.
a. What are the pros (positives) of this study?
____________________________________________
____________________________________________
b. What are the cons (negatives) of this study?
____________________________________________
____________________________________________
c. Is society ever justified in permitting this type of
research when the outcome benefits only some mem-
bers of society? Why or why not?
____________________________________________
____________________________________________
d. Should public funds be used to pay for this type of
research on children? Why or why not?
____________________________________________
____________________________________________
e. Some say that the final outcome of the Willowbrook
case falls into a “gray area” of ethics in which there is
no one clear answer. If this is the case, then, in your
opinion, where do we draw the line on testing children?
____________________________________________
____________________________________________
2. Your sister and her husband are having difficulty becom-
ing pregnant. She comes to you as a health care profes-
sional and asks your thoughts on what they might do to
conceive a child.
a. What are some topics that you might discuss with your
sister and her husband?
____________________________________________
____________________________________________
b. Who would you recommend that they speak with about
this problem?
____________________________________________
____________________________________________
c. Is there an ethical problem in giving medical advice to
a family member? Why or why not?
____________________________________________
____________________________________________
304 PART 3 Medical Ethics
3. Your neighbor’s 18-year-old unmarried daughter has just
given birth to a baby boy. The neighbor is concerned that
neither she, nor her daughter, can take care of this baby.
She asks you about the Safe Harbor Law.
a. What can you tell her about the Safe Harbor Law in
your state?
____________________________________________
____________________________________________
b. In your opinion, is giving her advice about this law
within the code of ethics of your chosen health care
profession?
____________________________________________
____________________________________________
c. Is this a legal and/or ethical problem?
____________________________________________
____________________________________________
Put It Into Practice
Contact your local chapter of Planned Parenthood and a Right-to-Life organization and
request information on their organization and services. Compare the philosophies and
missions of the two organizations as stated in their published materials. What do they
have in common? What are the differences?
Web Hunt
Using the website of the National Institutes of Health (www.nih.gov), click on the
“Office of Rare Diseases” heading. Using the list provided by the office, determine
which of the hereditary disorders in Table 12.1 is considered a rare disease.
Critical Thinking Exercise
What would you do if your best friend’s daughter comes into the office where you
work seeking birth control pills? You know that her mother does not know that she is
sexually active.
Bibliography
Ali, L., & R. Kelley. 2008. The curious lives of surrogates. Newsweek
(April 7), 45, 51.
Archibold, R. 2009. Octuplets, six siblings and many questions.
New York Times (February 4), A14.
Glanton, D. 2006. Sterile victims stand up, decry legacy of eugenics.
Chicago Tribune (September 6), 4.
Harmon, A. 2006. Couples cull embryos to halt heritage of cancer.
The New York Times (September 3), 1, 20.
Hathaway, W., & H. Hathaway. 2006. Pill sharpens abortion division.
Hartford Courant (March 13), 1, A4.
Huge settlement in baby-birth suit. 2007. Chicago Tribune (April 24),
Sec. 2, 3.
Lachman, V. 2004. Frontiers of biomedicine. In Advance for Nurses. King
of Prussia, PA: Merion.
Levine, C. 2011. Taking sides. New York: McGraw-Hill.
Munson, R. 2007. Intervention and reflection: Basic issues in medical ethics.
Belmont, CA: Wadsworth.
Noonan, J. 2003. An almost absolute value in history. In R. Munson,
Interventions and reflection (pp. 83–86). Belmont, CA: Wadsworth
Publishing.
Rabin, R. 2007. As demand for donor eggs soars, high prices stir ethical
concerns. New York Times (May 15), F6.
Rubin, B., & Lourgos, A. 2013. Couple battle over frozen embryos.
Chicago Tribune (September 18), Sec. 1.
Stein, R. 2006. A medical crisis of conscience. Hartford Courant (August
8), D3, D4.
Waldman, H. 2006. When doctors deliver anguish. Hartford Courant
(November 19), 1, A6.
Weil, E. 2006. A wrongful birth? New York Times (March 12), 48–53.
http://www.nih.gov/
305
Chapter 13
Death and Dying
Learning Objectives
After completing this chapter, you will be able to:
13.1 Define the key terms.
13.2 Discuss the difference between cardiac and
brain-oriented death.
13.3 Describe the Harvard Criteria for a
Definition of Irreversible Coma.
13.4 Discuss the pros and cons of euthanasia.
13.5 Provide examples of ordinary versus
extraordinary means used in the treatment
of the terminally ill.
13.6 List and discuss the five stages of dying as
described by Kübler-Ross.
Key Terms
Active euthanasia
Assisted suicide
Brain death
Cardiac death
Cardiopulmonary
Comatose
Curative care
Electroencephalogram (EEG)
Euthanasia
Expired
Health care proxy
Hospice
Hypothermia
Life-support systems
Mercy killing
Palliative care
Passive euthanasia
Persistent vegetative state (PVS)
Principle of double-effect
Quality of life
Respite care
Rigor mortis
Substitute judgment rule
Surrogate
Terminally ill
Viatical settlements
Withdrawing life-sustaining
treatment
Withholding life-sustaining
treatment
The Case of Marguerite M. and the Angiogram
Marguerite M., an 89-year-old widow, is admitted into the car-
diac intensive care unit in Chicago’s Memorial Hospital at 3:00
am on a Sunday morning with a massive heart attack (myocardial
infarction). Her internist, Dr. K., who is also a close family friend,
has ordered an angiogram to determine the status of Marguerite’s
infarction. Dr. K. knows that the angiogram and resulting treat-
ment need to be done within the first six hours after an infarc-
tion in order to be effective. Therefore, the procedure is going
to be done as soon as the on-call surgical team can set up the
angiography room. The radiologist, who lives 30 minutes from the
hospital, must also be in the hospital before the procedure can
begin. At 4:30 am the team is ready to have Marguerite, who is
barely conscious, transferred from the intensive care unit (ICU) to
the surgical suite.
Coincidentally, at 4:30 am Sarah W., an unconscious 45-year-
old woman, is brought in by ambulance with a massive heart
attack. The emergency department (ED) physicians, after confer-
ring with her physician by phone, conclude that she will need
(continued)
306 PART 3 Medical Ethics
Introduction
Issues relating to death and dying are especially sensitive, as they are topics that are ulti-
mately faced by everyone. The questions are difficult to contemplate, even though they are
critical. For example, should a feeding tube be inserted when a patient can no longer be fed
by mouth? Should a ventilator be attached when the patient can no longer breathe inde-
pendently? Should CPR be attempted when the heart stops beating? There are no defini-
tive agreements within the medical profession on many of the issues relating to death and
dying. The one point of agreement is that the dying patient must be treated with dignity.
The Dying Process
Death is inevitable for everyone. Modern medicine has enabled people to live longer
and survive diseases such as pneumonia that once caused the elderly to die quickly.
Infections can be treated and eliminated. The elderly, who may welcome death at the
end of a long life or illness, can now be kept alive by medical technology. This has
caused ethical and moral dilemmas for the health care profession. It is important to
remember that professional codes of ethics usually include a statement about the health
care professional’s duty to preserve the dignity and life of the patient.
Legal Definition of Death
Determining when a person has died is important for a variety of reasons. Obviously,
the most important reason is that no one wants to make the mistake of treating living
patients as though they were dead. A person who has died, or is said to have expired, is
no longer treated the same way as a living human. This in no way means that the body
of a deceased person, also known as a corpse, can be handled in a disrespectful way.
The actual determination of death has also become critical in the past few decades
because of advances in medicine such as organ transplantation and life-support systems.
Life-support systems, such as ventilators/respirators and feeding tubes, allow medical
practitioners to sustain for additional weeks, months, or even years a person who, accord-
ing to all traditional standards, has died. The classic case is that of Karen Ann Quinlan.
The Karen Ann Quinlan Case
On April 15, 1975, 21-year-old Karen Ann Quinlan was admitted to a New Jersey hos-
pital after becoming unconscious from a combination of a prescription drug and alco-
hol. She suffered cardiopulmonary (heart and breathing) arrest and was placed on a
a balloon angiography (dilating an obstructed blood vessel by
threading a balloon-tipped catheter into the vessel) to save her
life. When they call the surgical department to have the on-
call angiography team brought in, they are told that the room
is already set up for Dr. K.’s patient. They do not have another
team or surgical room for Sarah. A decision is made that because
Sarah needs the balloon angiography in order to survive, they will
use the angiography team for her.
Dr. K. is called at home and told that his patient, Marguerite,
will not be able to have the angiogram. The hospital is going to
use the angiography team for Sarah, because she is younger than
Marguerite and has a greater chance for recovery. Unfortunately,
it took longer than expected to stabilize Sarah before and after
the procedure and the six-hour “window” when the procedure
could be performed on Marguerite passed. Marguerite expired
(died) the following morning.
1. Do you believe that this case presents a legal or an ethical
problem, or both?
2. What do you believe should be the criteria for a physician
to use when having to choose a solution that will benefit
one patient at the expense of another?
3. How can Dr. K. justify this decision when speaking to the
family of Marguerite M.?
4. What options does a member of the angiography team or
a caregiver for Marguerite have if he or she disagrees with
this decision?
CHAPTER 13 Death and Dying 307
respirator after her pulse was restored. She received a tracheotomy (a surgical incision
into the trachea to assist in ventilation), had a nasogastric (NG) feeding tube inserted
through her nose and into her stomach to receive nourishment, and was considered to
be comatose, that is, in a deep state of profound unconsciousness from which she could
not be awakened. Her electroencephalogram (EEG), which measured brain activity,
was abnormal, but a brain scan showed her brain activity to still be within normal lim-
its. Months passed with no change in Quinlan’s comatose condition, but her physical
condition continued to deteriorate. She lost weight, dropping from 115 to 70 pounds
by September, and her body became rigid. When many months went by with no signs
that Karen would ever recover from the coma, her condition was considered to be
irreversible.
Karen’s father appealed to the court to appoint him guardian, which it ultimately
did. He requested that the extraordinary procedures, such as the respirator, be discon-
tinued. The Superior Court denied this request. Many other legal battles took place, and
eventually the respirator was discontinued. However, Quinlan continued to breathe
on her own even after the respirator was discontinued. The hospital continued to feed
Karen by artificial means, and she lived in a coma for 10 years before she died on July
11, 1985. The Quinlan case was groundbreaking because it represented the first time a
family had requested a court to approve the removal of a respirator from a permanently
comatose patient and won the case (In re Quinlan, 355 A.2d 647, N.J. 1976).
The insertion of a nasogastric tube is a serious decision when the patient is coma-
tose. An NG tube used as a feeding tube is a life-extending treatment as it will continue
to provide nutrition and hydration long after a patient is able to take nourishment on
his or her own. (A feeding tube can also be surgically inserted directly into the stomach
through the abdomen.) An incompetent person, unable to make decisions on his or
her own behalf, raises one of the most difficult ethical problems for those persons who
must decide whether to withdraw nutrition and hydration. The reason for this is that
there is no one clear definition of incompetence. In fact, competence is a legal term, and
incompetence can only be declared in a court of law.
Although a physician cannot legally declare a patient mentally incompetent, the
physician may recognize when a patient does not have the capacity to make decisions
regarding his or her own care. But this medical judgment is often not enough when
determining to withdraw life support measures. Physicians must make a determina-
tion based on mental capacity, physical condition, and the possibility of recovery. If the
patient has periods of mental incapacity as well as lucid moments, then the courts will
want decisions followed that are made during the patient’s lucid moments. The family
will also have to be consulted. Thus, there is not a simple answer to when to remove an
NG tube or withhold nutritional or other life-support measures.
Med Tip
The right to accept or reject medical treatment is each person’s fundamental right.
Criteria for Death
Certain criteria or standards assist in the determination that death has occurred. Some
indications, in addition to the loss of a heartbeat, include a significant drop in body
temperature, no pupil response to light, loss of body color, no response to pain, rigor
mortis (stiffness that occurs in a dead body), and biological disintegration. However,
these symptoms may not appear until several hours after death, or not at all if life-
support equipment is used.
While the criteria for death vary, this becomes problematic when a general con-
sensus for the definition of death is needed. For instance, because a deceased person’s
308 PART 3 Medical Ethics
organs can be removed for transplantation into a living body, if permission has been
granted by the deceased before death or by the deceased’s relatives, it is important to
determine if and when death has occurred.
In one unusual case, an emergency department doctor pronounced a 20-month-old
little girl, Mackayala Jespersen, dead after drowning in her backyard swimming pool.
The doctor made this pronouncement based on the flat-line heart and brain tracings
taken after she had been given an hour of CPR. As a police detective was photograph-
ing her dead body for record-keeping purposes, she took a deep breath. This occurred
39 minutes after being pronounced dead. Other children have survived hypothermia
(the state in which body temperature is below normal range) when they fell into ice-
cold water. But this little girl’s case is unusual because all of the proper procedures to
determine death were followed, and the criteria used to define death were met. How-
ever, she was still alive.
Dr. Susan Tolle, director of the Center for Ethics in Healthcare at the Oregon Health
and Science University in Portland, stated, “Clearly, medicine needs to get it right 100
percent of the time. . . . There can be no errors, ever.” But there is a real concern that
errors may still occur as there is no one reliable test to determine exactly when a person
has died. There is a continuing controversy over whether to use a cardiac definition of
death or a brain-oriented definition of death. Even then, in some cases it is difficult to
determine if someone is alive or dead.
Cardiac Death
Traditionally, death was defined as cardiac death, or death in which the heart has
stopped functioning. Heartbeat and breathing are interdependent. When the heart stops
functioning, breathing will also stop; conversely, if breathing stops, the heart will soon
stop beating. If no assistance is given, such as CPR, the patient is unlikely to recover. A
person who suffered an irreversible cessation of respiratory and circulatory functions
was considered dead. Medically trained personnel can make this determination based
on lack of pulse or breathing. A cardiac death is considered a legal death.
In most situations, the cardiac determination of death is effective. However, using
only the cardiac definition of death creates some problems. In fact, there is documenta-
tion of cases in which people lived even when their hearts stopped functioning. Several
years ago, at the University of Utah, a heart patient named Barney Clark lived for four
months with an artificial heart while he waited for a heart transplant. He was able to
be partially active while connected to the artificial heart, although his own heart was
no longer beating.
The definition for a cardiac death means that there is an irreversible loss of all car-
diac function. In some cases, the cessation of breathing and pulse are reversible, such
as in a drug overdose or hypothermia. This prolonged absence of oxygen can result
in neurological damage. A patient who has suffered a cardiac arrest and is “clinically
dead” may successfully be resuscitated with CPR. This person cannot be considered
dead because the cessation of breath and pulse is not irreversible.
Med Tip
Cardiac death (cessation of heart function) and cardiopulmonary death (cessation of heart
and lung function) are interchangeable as legal definitions of death.
Another serious problem with using only the cardiac-oriented definition of death
involves organ transplantation. In many cases, if the surgeon waits until all cardiac
function has ceased, many of the potential donor’s organs are useless as transplants.
CHAPTER 13 Death and Dying 309
Obviously, it is not ethical or moral to change the definition of death in order to increase
the number of organs available for transplant. However, many people believe that a
cardiac-oriented definition of death is inadequate.
Brain Death
Brain death, meaning complete and irreversible cessation of all brain function, has
gained favor as the definition of death in many countries, including the United States.
Using brain death as the criterion for declaring death is based on the premise that the
brain is responsible for all bodily functions, and once the brain stops functioning, all
other bodily functions will stop. In most states, if the whole brain is determined to be
dead (with no remaining brain function), then the person is considered deceased.
Med Tip
Modern technology has made it possible to maintain heart and lung function for hours, and
even days, after all brain function has stopped.
A persistent vegetative state (PVS) is a long-lasting brain condition in which the
patient is in a state of deep unconsciousness, although there may be some responses
such as yawning or grunting.
The diagnosis of PVS is usually made by a neurologist and confirmed by two
consulting neurologists after a brain-injured patient has been in a coma for at least
six months. A dilemma occurs in the case of a patient whose heart and respiratory
functions are maintained by mechanical means, such as a ventilator, but who has
no brain activity. The patient’s brain is dead, but because technology is sustaining
cardiopulmonary functioning, the body is still alive. Discontinuing the ventilation
support for a patient would result in the cardiac death of the patient. A moral dilemma
confronts physicians when they have to determine definitely whether such a person
has died.
Although the definitions overlap, distinctions may be made between a vegetative
state and a coma. Yawning/grunting-type activity often occurs in a vegetative state,
whereas a coma is generally characterized by no responses at all. On the other
hand, most comas are temporary and the patient usually “wakes up” after several
weeks, although possibly with residual mental damage. A vegetative state is more
severe and far less likely to result in recovery. If a vegetative state persists for a few
months, it is almost always irreversible.
The issue of death becomes extremely complex when a patient is comatose and
showing no signs of recovery. In 1968, the Harvard Medical School published a report
that outlined criteria for determining when a patient was in an irreversible coma or loss
of consciousness, which, according to the study, meant the patient was brain dead. This
was regarded as the first and most important sign of impending death. This irrevers-
ible coma or loss of consciousness was then followed by a cessation of heartbeat and
blood circulation. The Harvard Criteria for a Definition of Irreversible Coma includes
consideration of whether the patient:
• Is unreceptive and unresponsive, with a total unawareness of externally applied,
and even painful, stimuli.
• Has no spontaneous movements or breathing, as well as an absence of response to
stimuli such as pain, touch, sound, or light.
• Has no reflexes, has fixed dilated pupils, lack of eye movement, and lack of deep
tendon reflexes.
310 PART 3 Medical Ethics
The Harvard Criteria also specified the required tests, including an electroencephalo-
gram (EEG), to determine the absence of brain activity. Harvard recommended that
these tests should be repeated again after 24 hours.
In the years since setting the criteria, there have been no known patients who
have recovered after being declared in an irreversible coma using the Harvard Criteria.
The irreversible coma under the Harvard Criteria has been considered to constitute
brain death. Because the Harvard Criteria use the diagnosis of brain death as the neces-
sary condition for withdrawing life support, such as mechanical ventilators or respira-
tors, it emphasizes that the patient must be declared dead before any effort is made
to take him or her off a respirator. Otherwise, according to the Harvard Committee,
the physicians would be turning off a respirator on a person who, in a strict sense, is
still alive.
However, the Harvard Criteria are now coming under careful scrutiny and criticism
because they are the main criteria used to determine a person’s eligibility to become
an organ donor. There are patients who are in a persistent vegetative state but may
show some evidence of consciousness. Some ethicists believe that if there is some level
of consciousness, then the patient is not dead. This is a real concern for those who are
involved in determining when a person’s organs can be used for donation.
Furthermore, recent studies indicate that some vegetative patients, while unre-
sponsive, may actually have brain activity indicating awareness, and even a wish to
communicate. It is estimated there are currently as many as several thousand people
in the United States who are in a persistently vegetative or minimally conscious state.
To protect the patient, and also protect a physician against malpractice suits, an
outside medical opinion should be sought before terminating life support. This issue
has actually had a bearing in a criminal case. In Arizona, a murder defendant argued
that it was not his criminal action that caused the death of the victim, but rather the
actions of the physician who discontinued the life-support system. In this case, the court
rejected the defendant’s argument, holding that brain death was the valid test for death
in Arizona. The court found that the victim’s brain function had ceased as a result of
the defendant’s criminal action before the life support was discontinued (State v. Fierro,
603 P.2d 74, Ariz. 1979).
Uniform Determination of Death Act
In the 1980s, the American Bar Association, the American Medical Association, the Uni-
form Law Commissioners, the American Academy of Neurology, and others approved
a Uniform Determination of Death Act (UDDA). This law was adopted by a number
of states. It says:
An individual, who has sustained either (1) irreversible cessation of circula-
tory and respiratory functions, or (2) irreversible cessation of all functions
of the entire brain, including the brain stem, is dead.
Many groups, such as Orthodox Jews, many Catholics, and right-to-life proponents,
object to the brain death criteria. These groups believe acceptance of the brain death
criteria in all circumstances would legitimize practices they consider immoral, such as
euthanasia and abortion.
Med Tip
Many phrases are used to refer to a deceased person, such as passed away, passed
on, departed, and left this world. It is important to know which one is used in a particular
family so as to be as compassionate as possible when discussing the death of a family
member or loved one.
CHAPTER 13 Death and Dying 311
In caring for the critically ill or those patients who are considered to be terminally
ill, where death is inevitable, there are several ethical considerations: (1) withdrawing
versus withholding treatment, (2) active euthanasia versus passive euthanasia, (3) direct
versus indirect killing, and (4) ordinary versus extraordinary means.
Withdrawing versus Withholding Treatment
Withdrawing life-sustaining treatment, such as artificial ventilation, means to discon-
tinue it after it has been started. Withholding life-sustaining treatment means never
starting it. Health care practitioners often find it more difficult to withdraw treatment
after it has been started than to withhold treatment. However, many people believe that
both are ethically wrong.
Starting a life-sustaining treatment, even on a temporary basis, allows the physi-
cian more time to evaluate the patient’s condition. The physician may believe that
if the treatment is ineffective, it can be stopped. However, in some cases, it has been
necessary to get a court order to discontinue a treatment, such as a respirator, that has
already been started.
Patients have the legal right to refuse treatment as well as food, even if they are not
terminally ill. In a 1986 California case, a young woman with cerebral palsy, who had no
use of her voluntary muscles, was unable to take her own life as she wished to do. She
hospitalized herself and then stated her intent to refuse any food and to have her nasogas-
tric (feeding) tube removed so that she could eventually die of starvation. The California
Court of Appeals held that she had the right to refuse nutrition and hydration in order to
end her life. She won her lawsuit and had the nasogastric tube removed (Bouvia v. Superior
Court, 225 Cal. Rptr. 287, Cal. App. 1986). As recently as 2012 she was reported alive and
she continued to live and be cared for at home without the use of a feeding tube.
Active Euthanasia versus Passive Euthanasia
The word euthanasia literally means “good death” from the Greek word eu meaning
“good” and Thanatos, the ancient Greek personification of death. However, interpreta-
tions of the meaning of euthanasia have become much more complicated than simply
that someone has or is allowed to have a “good death.” Most people equate the term
euthanasia with “actively doing something” to create that good death. Other terms that
people use instead of the term euthanasia are assisted suicide, right to die, and aid-in-
dying. And, in fact, suicide has also been considered a form of euthanasia. There are
differing viewpoints on whether euthanasia is ethical or unethical. Many people believe
that euthanasia is a humane treatment of terminally ill patients in order to put an end
to their suffering and pain. At the present time, euthanasia in the sense of killing some-
one to spare them suffering is illegal in all states. Assisted suicide, meaning helping
someone to kill him- or herself, is illegal in 43 states but legal in seven states (California,
Colorado, Hawaii, Montana, Oregon, Vermont, and Washington). Keep in mind that this
list can change whenever the law is changed in any individual state.
Most people believe that there is a distinction between actively killing a patient
(active euthanasia or assisted suicide) and allowing a patient to die by forgoing treat-
ment (passive euthanasia). This moral distinction is approved by the AMA and the
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research. It is not accepted by Orthodox Judaism.
Active euthanasia, the intentional killing of the terminally ill, involves a second
party directly introducing a lethal dose of medication, such as by injection, into the
dying person. As already noted, active euthanasia is illegal in all jurisdictions in the
United States.
While active euthanasia is illegal, and assisted suicide is legal in only seven states,
passive euthanasia, or allowing a patient to die naturally, is legal everywhere. Passive
312 PART 3 Medical Ethics
euthanasia involves withholding medical interventions that would only serve to sustain
the life. This includes hydration (supply of fluids) and nutritional feeding. The patient
is to be kept clean, warm, and protected from infection and pain as much as possible.
The dying patient is medicated to be pain free, but no lethal doses are administered.
The dying process is neither inhibited nor accelerated.
There is always the concern that chronically ill and dying patients may be pres-
sured to choose euthanasia in order to spare their families further emotional or financial
strain. Any pressure of this type can lead to serious ethical and moral questions.
Med Tip
The term passive euthanasia is falling out of favor by religious organizations. The phrase
“allow to die” is used instead.
Arguments in Favor of Euthanasia
People who favor euthanasia offer the following justifications:
• Respect for patient self-determination. Individuals should have the right to deter-
mine the outcome of their lives.
• It provides a means for harvesting viable organs.
• It provides relief for the family of a patient with an irreversible condition or ter-
minal disease.
• It provides a means to end a terminally ill person’s suffering.
Arguments in Opposition to Euthanasia
Many people oppose euthanasia in any form (active or passive) for several reasons,
including the following:
• There is no certainty regarding death. Many terminally ill patients have been
known to recover.
• Modern technology may find a cure for a terminal disease.
• Families who are undergoing stress because of the financial burden of a dying rela-
tive may be examining euthanasia just to relieve that burden.
• If euthanasia is allowed, then it might be used indiscriminately.
• It is not good for society to have physicians kill patients or for patients to kill
themselves.
• There is value and dignity in every human life.
• When physicians and other health care professionals become involved in any form
of euthanasia, it erodes the very ethical basis of the professions.
• The sick and dying may have a fear of involuntary euthanasia if euthanasia is
legalized.
• Judeo-Christian religious beliefs declare that only God has dominion over life.
Slippery Slope Argument of Assisted Suicide
Some ethicists are concerned that if our society were to allow assisted suicide, it could
lead to a form of legalized murder. This “slippery slope” argument against permitting
assisted suicide also contends that it would eventually lead to a diminishing of our
respect for life. Their warning is that once we set out upon the climb, or slope, toward
helping a terminally ill patient to die, we can easily slip downward into helping others
to die who are not terminally ill, such as the elderly, disabled, or unproductive.
CHAPTER 13 Death and Dying 313
Signing a living will is meant to prevent medical staff from using “extraordinary”
measures, such as ventilators, to keep us alive beyond the time when we would desire
or accept death. However, it is important to note there is documentation that an elderly
woman who had signed a living will was denied treatment that she expected and
needed. Even though her complications after surgery were treatable, the medical staff
misinterpreted the intent of her living will. They stood by doing nothing for 20 minutes
as they watched her die. Consumer activist and attorney Wesley Smith is fearful that
assisted suicide would not be restricted for dying people as a “last resort” but, instead,
death would be hastened for people who were not terminal.
There is the added danger that if assisted suicide were legal, it might lead to situa-
tions such as allowing “defective” infants to die. Smith cites the example of a baby boy
born prematurely with kidney problems. Only a court order demanding that his doctors
use life-saving methods (dialysis) saved his life. This boy eventually came off dialysis
and today lives a full life. According to Smith, legalizing euthanasia and assisted suicide
would be a disservice to the people who are the most powerless, such as children and
the disabled, critically ill, and indigent.
There are many people who believe that pain and depression can be treated and
should not be a reason for assisted suicide to take place. Most people agree that this
is not just a religious matter. “Mercy killing,” a form of assisted suicide, is against the
law but it still occurs. Some physicians have prescribed very high doses of narcotics to
patients with terminal cancer knowing that, while the high dose will relieve the pain, it
might also hasten their death. In most cases, however, death would be unintended by
the physician and the high dose of narcotic would only be meant as a comfort measure
for a dying patient.
U.S. Supreme Court Justice Benjamin Cardoza once wrote the following words
about an early movement to legalize euthanasia, “Just as life may not be shortened,
so its value must be held as equal to that of any other, the mightiest or the lowliest.”
A concern that many ethicists voice is the rise in the suicide rates, particularly in
the elderly, since the rise in euthanasia advocacy and the media attention to Jack Kev-
orkian. Barbara Haight, who directs a program to prevent suicide among the elderly at
the University of South Carolina College of Nursing, believes that the attention paid to
euthanasia by the media has “made suicide more acceptable to people who once would
not have considered it because of religious and family concerns.”
Individual health care professionals must remember that active euthanasia vio-
lates the medical profession’s ethics and is against the law. The Nancy Cruzan case is
an example of a situation in which the removal of a feeding tube was a form of active
euthanasia within the law.
The Nancy Cruzan Case
On January 11, 1983, 25-year-old Nancy Cruzan was involved in an automobile colli-
sion that left her in a vegetative state until her death eight years later. A feeding tube
was implanted in her in a Missouri hospital. Three years after the collision, her parents,
who had been granted guardianship, believed that she would never regain conscious-
ness. The family sought legal assistance from the American Civil Liberties Union and
requested that the feeding tube be removed. The judge ruled in favor of the Cruzans,
but the case was appealed. The U.S. Supreme Court overturned the judge’s decision
and ruled against the Cruzans because under Missouri law, hydration or nutritional
support could not be withdrawn from an incompetent patient unless clear evidence
demonstrated that this is what the patient would have requested. Several years later,
new evidence became known when two of Cruzan’s former coworkers came forward.
They both stated that she had said she would not wish to be maintained like Karen
Quinlan. In December 1990, a judge complied with the Cruzans’ wish to have their
daughter’s feeding tube removed. In reaction to this verdict, right-to-life protestors
demonstrated outside the rehabilitation center where Cruzan was being kept alive.
314 PART 3 Medical Ethics
The feeding tube was removed on December 14, 1990, and she was pronounced dead
12 days later on December 26, 1990 (Cruzan v. Director, Missouri Dep’t. of Health, 497
U.S. 261, 1990). In 1996, the Cruzan family went through another tragedy when
Nancy’s father, Joe Cruzan, hanged himself in the family home. His family and friends
believed that he was unable to emotionally recover from his daughter’s long, drawn-
out death.
Both the Karen Quinlan and the Nancy Cruzan cases are considered to be landmark
cases in medical law and ethics because they established an individual’s right to refuse
to receive medical care. Because both these cases lasted over a period of several years,
the cases also illustrated the need for people to let family members know both verbally
and particularly in writing what their wishes are for life-sustaining medical care if they
become incompetent.
Terri Schiavo: “The Face That Moved a Nation”
In October 2003, the face of Terri Schiavo smiling at her mother caught the interest of the
U.S. public and the governor of Florida, Jeb Bush. Terri had been in a persistent vegeta-
tive state since 1990. Her husband, Michael, and her parents were friendly until a jury
awarded $1 million to Terri, under Michael’s control, in a medical malpractice lawsuit.
The parents contend that Michael stopped his wife’s therapy and used the money to pay
lawyer’s fees in an attempt to have his wife’s feeding tube removed. Terri’s husband
stated that he wanted to fulfill his wife’s wishes that she not be kept living in a comatose
or vegetative state. Her parents opposed having the tube removed, declaring that she is
not comatose but rather appears to smile, blink, and is able to follow balloons and her
parents as they move about her room.
Physicians who examined Terri over the years indicated that she could respond to
pain, blink her eyes, and raise her leg when asked to do so. In 2003, a speech patholo-
gist stated that Terri uttered “stop” in response to a medical procedure that was being
done to her. One doctor stated that she was not in a “persistent vegetative state,” based
on the evidence he found when he examined her.
Terri’s feeding tube was removed as ordered by the court. There was a great
amount of media attention over her case, including a photo of Terri Schiavo smiling
up at her mother on the front page of many national newspapers. One week after the
feeding tube was removed, Governor Jeb Bush and the Florida legislature ordered that
the feeding tube be reinserted. It was. In fact, Terri’s feeding tube was removed and
reinserted three times before the final removal. She died 13 days after the feeding tube
was removed, which was 15 years after her collapse from cardiac arrest at the age of 26,
and seven years after her court battle began.
Direct versus Indirect Killing
In some situations, an action can lead to two effects: one that is intended and even desir-
able, and another that is unintended and undesirable.
A person’s death may result from another person’s intended action or inaction. For
instance, if a person intentionally ignores a patient who is choking because she or he
wants the patient to die, that person has killed the patient.
However, death may be an unintentional result of another person’s action. For
example, if a high-risk patient dies from an anesthetic, the patient’s death was not
Med Tip
Families often ask for advice from health care workers on what course of action they should
take for a dying loved one. Remember that the physician is the only health care professional
who can advise the patients or their families on a course of medical treatment.
CHAPTER 13 Death and Dying 315
intended or desired. A surgeon who is morally opposed to abortion may have to remove
a cancerous uterus in a pregnant woman; the death of the fetus is not intended or
desired, but is the indirect result of treating the disease. The death, in this case, would
be morally tolerable, even by members of religions opposed to abortion, because death
of the fetus was not the intended purpose of the surgery.
These actions fit within the principle of double-effect, which recognizes that
an action may have two consequences: one desired (and intended or morally good)
and one undesired (and unintended). Some organizations oppose direct killing
but accept undesired and unintended deaths. The courts generally make the same
distinctions.
Ordinary versus Extraordinary Means
Another important distinction concerns the difference between ordinary and extraordi-
nary means. This distinction is important for determining which treatments are morally
required. To do this, we cannot simply separate common means, such as fluids and
feeding tubes, from uncommon means, such as respirators, because in some situations
even common procedures or treatments may be considered extraordinary. Many believe
that it is inappropriate to use the complexity of the technology to determine what
treatment to use or not use. For example, is it morally right to force a nasogastric
feeding tube into a 90-year-old pneumonia patient who does not wish to have this
treatment? In other situations, it may be considered an ordinary means of treatment to
temporarily use a respirator on a 90-year-old woman who is recovering from a choking
episode.
The term ordinary refers to a treatment or procedure that is morally required, such
as fluids and comfort measures. Extraordinary measures refer to those procedures and
treatments that are morally expendable. Some professionals use the terms appropriate
and inappropriate instead of ordinary and extraordinary. A treatment is considered morally
expendable, or inappropriate, if it does not serve any useful purpose. For example, a
commonsense judgment would determine that chemotherapy would be useless in the
final days of a cancer patient’s life.
Even if a treatment may serve the useful purpose of prolonging life, it may not
be morally justified if it involves a grave burden. This was discussed in the Presi-
dent’s Commission for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research. In addition, Pope Pius XII issued the following statement on
prolonging life:
Normally one is held to use only ordinary means—according to circum-
stances of persons, places, times, and culture—that is to say, means that do
not involve any grave burden for oneself or another.
These are difficult issues to encounter. The administration of fluids, nutrition, and
routine nursing procedures such as turning a patient may result in what the patient
believes is a grave burden. These treatments may cause further pain and discomfort. In
addition, they may actually be useless to recovery, but as in the case of turning bedrid-
den patients, are considered necessary nursing care or ordinary means of care.
Right to Die Legislation or Right to Refuse
Treatment
Patients have the right to refuse treatment. In extreme cases in which the patients’
refusal places their lives in danger, legal action sometimes results. The following is an
example of such a case.
In January 1978, the Tennessee Department of Human Services filed a lawsuit seek-
ing to have a guardian ad litem appointed to care for 72-year-old Mary Northern, who
316 PART 3 Medical Ethics
had no living relatives and suffered from gangrene of both feet. This condition required
removing both her feet in order to save her life. During the court hearings, even though
she was alert and lucid, Northern did not have the capacity to understand the severity
or the consequences of her disease process, as demonstrated by her insistence that her
feet were black because of dirt and that her physicians were incorrect about the serious-
ness of her infection. The court determined that she was in imminent danger of death
without the amputation and authorized the state’s commissioner of human services
to act on her behalf in consenting for the surgery. However, on May 1, 1978, before
Mary could be stabilized for surgery, she died of a blood clot from the gangrenous tissue
(State Dep’t. of Human Services v. Northern, 563 S.W.2d 197, Tenn. Ct. App. 1978).
Stages of Dying
Dr. Elisabeth Kübler-Ross devoted much of her life to the study of the dying process.
She divided the dying process into five stages that she believes the patient, family
members, and caregivers all go through. The five stages are denial, anger, bargaining,
depression, and acceptance. According to Kübler-Ross, these stages overlap and may
not be experienced by everyone in the stated order, but all are present in the dying
patient. The five stages of dying or grief are summarized in Table 13.1.
Quality-Of-Life Issues
Quality of life refers to more than just what a person experiences at one moment in
time. It includes many dimensions such as physiological status, emotional well-being,
functional status, and satisfaction with life in general. A medical procedure or inter-
vention, such as aggressive treatment for a terminal illness, will have an impact on the
physical, social, and emotional well-being of a patient. This impact can be measured
to assess the intangible costs and consequences of the disease or illness. These quality-
of-life measurements can assist with making health care decisions based not only on
clinical factors and costs, but also on issues that the patient believes are important.
Measures used to assess quality of life include the following:
• General health
• Physical functioning
Denial A refusal to believe that dying is taking place. This may be a time when the patient
(or family member) needs time to adjust to the reality of approaching death. This
stage cannot be hurried.
Anger The patient may be angry with everyone and may express an intense anger toward
God, family, and even health care professionals. The patient may take this anger out
on the closest person, usually a family member. In reality, the patient is angry about
dying.
Bargaining This involves attempting to gain time by making promises in return. Bargaining may
be done between the patient and God. The patient may indicate a need to talk at this
stage.
Depression There is a deep sadness over the loss of health, independence, and eventually life.
There is an additional sadness of leaving loved ones behind. The grieving patient
may become withdrawn at this time.
Acceptance This stage is reached when there is a sense of peace and calm. The patient makes
comments such as, “I have no regrets. I’m ready to die.” It is better to let the patient
talk and not to make denial statements such as, “Don’t talk like that. You’re not
going to die.”
Table 13.1 Five Stages of Dying (or Grief)
CHAPTER 13 Death and Dying 317
• Role limitations, such as within the family structure
• Pain
• Social function
• Vitality
• Mental health
Questions are asked relating to each of these dimensions by the health care pro-
fessional to create a patient’s health profile. Two useful quality-of-life measurement
instruments are the Functional Living Index: Cancer (FLIC) and the Arthritis Impact
Measurement Scale (AIMS). The results of these measurement tests can aid the prac-
titioner and the patient in making quality-of-life decisions, such as whether to extend
life with the use of support systems.
Use of Medications
A four-year study of over 8,000 dying patients was published in the Journal of the
American Medical Association in November 1995. Families reported that half of the
patients who were able to communicate in their last days spent most of the time in
moderate or severe pain. Physicians often have a reluctance to overprescribe pain medi-
cations for patients out of a fear that the patient may become addicted to the drug. How-
ever, in the case of a dying patient who may not live long enough to become addicted,
there is a belief among many physicians that the patient’s pain and suffering should be
controlled with the use of adequate medications. The Hippocratic tradition of medicine
stated that it is a fundamental responsibility of physicians to relieve pain (Figure 13.1).
Currently, 9 million Americans live with cancer, and the estimate is that about
60 percent of those patients will eventually die of the disease. Surveys indicate that
one-third of patients receiving active therapy, such as chemotherapy, and two-thirds
of patients with an advanced disease have significant pain. Yet only about half of the
patients receive adequate pain control.
FIGURE 13.1 Older Adults May Need Special Assistance
with Medication
Med Tip
Even though a nurse may believe that a dying patient requires more pain medication, she
or he cannot increase the dosage or administration times without a physician’s order.
318 PART 3 Medical Ethics
Hospice Care
Hospice, a multidisciplinary, family-centered care, is a system that is designed to pro-
vide care and supportive services to terminally ill patients and their families. The hos-
pice movement, which originated in France, has a commitment to keep patients with a
terminal illness as pain-free as possible. Our modern-day hospice is modeled after Saint
Christopher’s Hospice in London, which was started by Dr. Cicely Saunders in 1966.
She established a facility with a homelike atmosphere where terminally ill patients,
both young and old, find comfort until death. Hospices, based on Dr. Saunders’s model,
are found throughout the world. The hospice service is available both in a facility such
as Dr. Saunders’s model and also in the patient’s own home, where a hospice worker
provides daily care if needed.
There is mounting evidence that hospice care can provide a better way to die. It
is advertised as “death with dignity.” Hospice care is focused on providing comfort
measures, emotional support, and a final environment as pain-free as possible for the
patient. There is now a much greater understanding of the use of narcotics for termi-
nally ill cancer patients.
Whenever possible, patients are kept awake and alert so that they can spend some
of their last moments with their family members. Additional services, such as pastoral
and respite care for the family, are part of the hospice philosophy. The staff consists of
specially trained personnel who have experience and interest in caring for the dying
patient. The patient is usually only hospitalized in a hospice unit during the final weeks
of life. Hospice care is meant to liberate patients from their pain and suffering so that
they can truly live until they die (Figure 13.2).
Med Tip
In previous decades many physicians and nurses were concerned that a high dose of
narcotic medication to alleviate pain would result in respiratory failure and addiction. There
is new evidence that patients can be kept almost pain-free at the end of their life with care-
fully managed medication control.
FIGURE 13.2 Older Adult Discussing Health Care with Physician
© Science Photo Library/Alamy Stock Photo
CHAPTER 13 Death and Dying 319
Palliative Care
Palliative care is the total care of patients whose disease is no longer responsive to cura-
tive therapy. This type of care, consisting of comfort measures, is meant to provide a
relief of pain and suffering so the patient can die with dignity. Comfort measures include
frequent turning and bathing, gentle massage, providing oral fluids, and listening to
the patient. Palliative care emphasizes symptom control, such as for pain, shortness of
breath, and supportive therapy for depression. Palliative care is not euthanasia, nor
do the health care professionals giving this type of care passively allow people to die.
Palliative care, which is the opposite of curative care in which we attempt to cure
the patient’s disease, requires health care professionals who understand the need for
compassion rather than surgical or medical interventions. What palliative care can do
is to make the end-of-life period a meaningful experience for the patient rather than
something of which to be frightened.
Some critics of modern-day health care believe that our culture has a built-in bias
that “everything that can be done will be done” for the dying patient. Some physicians
have stated that aggressive treatment for the elderly, such as chemotherapy, at acute care
hospitals can be inhumane. And once they are started they cannot be withdrawn. Many
dying patients do not wish to lose the opportunity to make decisions about their quality
of life and give up control over their care. But this may not mean that they wish to have
extraordinary measures taken to prolong their life. Dr. Dennis McCullough uses the term
“slow medicine” meaning that a compassionate approach to caring for aging loved ones
does not require aggressive and even painful procedures. He believes that because nine
out of ten people who live into their 80s will be unable to care for themselves at a certain
point, they must make their choices clear to their caregivers ahead of time. If they do
not wish heroic measures, such as CPR, to be taken, then this must be stated in writing.
Viatical Settlements
Viatical settlements allow people with terminal illnesses, such as AIDS, to obtain
money from their life insurance policies by selling them. The term viatical comes from
the Latin term viaticum, the money and supplies given to Roman officials before tak-
ing on a risky journey for the empire. (Viaticum is also the Roman Catholic sacrament
given to the dying patient.) A viatical settlement means that in exchange for a 20 to 50
percent discount on the face value of the patient’s insurance policy, he or she can have
immediate access to the money. The patient names the settlement company as the recipi-
ent of the death benefit. In return, the viatical settlement company assumes complete
responsibility for the insurance policy, including making all the premium payments. The
owner then receives no further benefits from the insurance. At the time of the patient’s
(viator’s) death, the viatical settlement company receives the death benefit from
the policy.
Many terminally ill patients have used the money to provide for medical and nurs-
ing care during their final illness. However, others have used the money to enjoy a
vacation with family members or to pay for experimental medical treatments that health
insurance companies will not cover.
There are problems with viatical settlements, including tax liabilities and a potential
loss of means-based entitlements such as Medicaid. Because the payment to the patient
Med Tip
Because most of the hospice care is now provided in the patient’s home, this can be a
burden on the patient’s family with the result that the family may require respite care (relief
time from the responsibilities of patient care).
320 PART 3 Medical Ethics
is less than the face value of the insurance policy, the patient could be “giving away”
a significant amount of money to the settlement company. In addition, terminally ill
patients often live much longer than they expected with their illness, and the small
payment by the settlement company may not be enough to help them.
Advance Directives
The Federal Patient Self-Determination Act of 1991 mandates that adult patients admit-
ted into any health care facility that receives funding from either Medicare or Medicaid
must be asked if they have an advance directive or wish to have information about
these self-determination directives. An advance directive is a document that directs a
surrogate (a person who is replacing another person) to represent them. Ideally, people
make decisions about advance directives before they are in a situation in which they
are being admitted to a hospital or nursing home. If these documents—such as a living
will, durable power of attorney for health care, Uniform Anatomical Gift Act, or do not
resuscitate (DNR) order—have to be drawn up after a patient has entered a facility, then
it should be done in a nonstressful manner.
Advance directives are popularly known as living wills. These documents became
popular about 30 years ago when medical technology made it possible for people to
be kept alive in unpleasant and fragile conditions for long periods of time. An advance
directive is a statement or declaration by a patient that he or she does not want to be
connected to life support equipment if the patient becomes terminally ill without hope
of recovery. The document should be signed and witnessed and may serve as a “liv-
ing will,” depending on the current law in the person’s state. Advance directives limit
the type and amount of medical care and treatment that patients will receive if they
should become incompetent and have a poor prognosis. It is important that directives
are placed in writing; it is not sufficient for a person to just tell someone what his or
her wishes for treatment are. The courts typically enforce written advance directives.
For additional discussion about advance directives, see Chapter 5.
The substitute judgment rule is used when decisions must be made for people who
cannot make their own decisions. Under this rule a person, committee, or institution
will attempt to determine what the person would do if she or he were competent to
make their own decisions. However, there is always speculation about what decision
the patient would actually make if they were competent, even though they may have
indicated their wishes to another person at an earlier time. Therefore, when there is a
lack of an advance directive, most decision makers will rule in favor of using all inter-
ventions such as tube feedings. This is a case in which the principle of beneficence is
followed because it operates in the interests of the patient. A subjective judgment of a
committee or institution may or may not be what the patient would request if able to
do so. Therefore, an advance directive is clearly the recommended document to advise
the best course of treatment for the patient.
Without an advance directive from the individual patient, treatments that might
be ordered for patients include CPR, mechanical breathing or respirator, tube feedings,
kidney dialysis, chemotherapy, intravenous therapy, surgery, diagnostic tests, antibiot-
ics, and transfusions.
Med Tip
All health care professionals should be aware that it is also acceptable for a patient to
write an advance directive asking to receive maximum care and treatment for as long as
possible.
CHAPTER 13 Death and Dying 321
Health Care Proxy
In some cases, a person can sign a health care proxy appointing another person to act for
them in making health care decisions on their behalf. Each state has passed laws to allow
a health care proxy to be signed that authorizes the person appointed to make such
health care decisions. Health care proxies may place specific limitations on the author-
ity of the authorized person. Such proxies can be revoked either orally or in writing.
Choices in Life and Death
Suicide
Is it morally permissible to allow competent persons to consent to their own deaths?
Voluntary euthanasia and suicide are considered to be morally different. Voluntary
euthanasia, or mercy killing, is the action (or inaction) of a second person to help or
hasten the death of the person who wishes to die. Suicide involves only the actions of
the person seeking death. Suicide is considered to be morally wrong and is illegal in
most states. However, no state currently punishes people who attempt suicide, although
they may be placed in psychiatric care if they present a danger to themselves. Many
religions condemn suicide and euthanasia.
Suicide is considered to be a major preventable health problem in the United States.
The World Health Organization estimates that approximately 800,000 people die each
year from suicide worldwide; it is the 18th leading cause of death worldwide. Unfortu-
nately, in spite of being preventable, the statistics keep growing. There are an estimated
11 attempted suicides for every actual suicide death. It is the 10th leading cause of death
in the United States, with an overall suicide rate of 11.3 deaths per 100,000 people. It is a
very complex behavior pattern, with the risk factors varying by gender, age, and ethnic
group. Suicide victims often have feelings of isolation, helplessness, and self-loathing.
They can’t see any way out of their suffering other than suicide. According to studies,
most people who commit suicide don’t want to die—they just want to stop hurting.
Talking openly about suicidal thoughts and feelings may save a life.
Health care professionals need to know that the suicidal person is in great distress,
and even pain, from suffering that often becomes unbearable. They may not be able
to see a way out of their depression. There may be sudden warning signs of intent to
commit suicide. The suicide warning signs are summarized in Table 13.2.
Med Tip
It is recommended that all persons over the age of 18 place in writing their wishes about
what type of treatment they should receive if they become incompetent. The advance
directive should be specific about treatments such as CPR, tube feeding, and ventilators.
• Talking about suicide
• Preoccupation with death
• Seeking out lethal means such as guns, pills, knives
• Believing there’s no hope for the future
• Feelings of worthlessness
• Getting affairs in order
• Unexpectedly saying goodbye
• Withdrawing from friends and family
• Sudden sense of calm
Table 13.2 Suicide Warning Signs
322 PART 3 Medical Ethics
The dramatic rise in opioid addiction is also a concern. Experts say that distin-
guishing accidental from intentional deaths from overdose can be difficult. The Centers
for Disease Control and Prevention has estimated that suicides from opioid overdoses
nearly doubled between 1999 and 2014. A 2014 survey showed that individuals addicted
to prescription opioids had a 40 to 60 percent higher risk of suicidal tendencies. Users
of opioids were twice as likely to attempt suicide as people who did not use them. (See
Chapter 7 for a discussion of the opioid crisis.)
The risk factors for suicide are summarized in Table 13.3.
Antidepressants and Suicide
In some people, depression medicine may actually cause an increase in depression
rather than a decrease. The Federal Drug Administration (FDA) advises that anyone
on antidepressants should be watched for increased signs of suicidal thoughts and
actions. They state that the risk of suicide is greatest during the first two months of
antidepressant treatment.
Misconceptions about suicide include:
• A belief that if a person is determined to kill him- or herself, there is nothing that
is going to stop them. According to studies, most people do not want to kill them-
selves, they just want the emotional pain to stop.
• A belief that people who talk about committing suicide won’t really do it. Usually the
person has given some kind of warning such as “You’ll be sorry when I’m dead.” Or
they may casually joke about suicidal feelings. These threats should not be ignored.
• A belief that anyone who attempts suicide must be crazy. Most suicidal people are
not insane or psychotic. They may be depressed, or grief stricken, but these are not
necessarily signs of mental illness.
• A belief that people who commit suicide were unwilling to seek help. Studies have
shown that as many as half of all suicide victims have sought medical help at least
six months before their death.
Med Tip
A threat to commit suicide must always be taken seriously. Health care professionals
are often the first to hear a patient, a child, or a friend talk about their feelings or suicidal
thoughts. Always listen and call for help immediately.
Research demonstrates that there are several risk factors for suicides:
• Depression and other mental disorders
• Substance abuse disorder or alcoholism
• Family history of a mental disorder or substance abuse
• Family history of suicide
• Stockpiling medications
• Firearms in the home
• Recent death of a loved one
• Terminal illness or chronic pain
• Exposure to the suicides of others: family members and peers
• Incarceration
• A prior suicide attempt
Table 13.3 Risk Factors
CHAPTER 13 Death and Dying 323
Gender
Men are at a higher risk of suicide than women. Suicide is the seventh leading cause
of death for men and the 14th for women. And almost four times as many men die as
women. The leading causes of death from suicide are from firearms, suffocation as from
hanging, and poisoning.
Age Factor of Children
The suicide rate among children and young people varies with age groups. There is less
than 1 death per 100,000 children for ages 10 to 14. Almost 7 deaths occur per 100,000
for ages 15 to 19. And young adults between the ages of 20 and 24 have a death rate of
almost 13 per 100,000. Firearms and suffocation are the major causes of death among
older children.
Warning signs of suicide in teenagers include withdrawal from friends, changes
in eating and sleeping, violent or rebellious behavior, drug or alcohol use, difficulty in
concentrating, and frequent complaints about physical problems.
Older Adults
Of every 100,000 people who were over the age of 65, there were more than 14 deaths
by suicide in 2007. This figure is higher than the national average for younger adults
who had 11 suicides per 100,000 people. Non-Hispanic men, ages 85 and older, had an
even higher rate, with 47 suicide deaths per 100,000.
Causes of suicide in the elderly include recent death of a loved one, physical illness
or disability, isolation and loneliness, loss of independence, and major changes such as
retirement. Signs of depression include an increase in alcohol or prescription drug use,
failure to take care of themselves, sudden interest in firearms, or sudden completion
of a will.
Risks for Nonfatal Suicide Attempts
There are 11 estimated suicide attempts for every suicide death. Men and the elderly
are more likely to have fatal attempts than women and youths. The risks for nonfatal
attempts include depression, other mental disorders, alcohol, substance abuse, separa-
tion, and divorce.
Suicide Prevention
Prevention programs should be performed by trained professionals. Many programs
are aimed at providing assistance for persons with substance abuse problems, which is
a major risk factor for suicide. Medications and psychotherapy are the major treatments.
Suicide prevention includes the following:
• Speak up if you see any of the warning signs of suicide in a patient, friend, or loved
one.
Med Tip
Most suicide attempts are expressions of extreme distress. They are NOT harmless bids
for attention. A person who expresses suicidal thoughts or actions should not be left alone.
They require immediate mental health treatment from experts; always call 911.
Med Tip
A suicidal person may not ask for help but don’t assume that it isn’t wanted. If a suicide
attempt is impending, immediately dial 911, call a local crisis center, or, if possible, take
the person to an emergency department. A suicidal person should never be left alone!
324 PART 3 Medical Ethics
• Listen calmly in a nonjudgmental fashion.
• Offer hope and reassurance by letting the person know that his or her life is impor-
tant to you.
• Comments might include:
“I’ve been worried about you.”
“I’ve wanted to talk with you because you don’t seem to be yourself lately.”
“When did you begin to feel like this?”
“Have you thought about getting help?”
• Remove all potential means of suicide such as pills, guns, or knives. If the patient
is threatening to take an overdose of pills, then either lock the pills away or
permanently dispose of them.
Do not:
• Argue, lecture, or be judgmental with a suicidal patient.
• Offer to fix whatever problems are bothering the person. However, you may have
to help them find assistance.
• Promise confidentiality. You may have to keep the suicidal person safe by seeking
immediate help for them by calling 911.
• Blame yourself because you cannot fix someone’s depression.
“Survivor’s Guilt”
There is often a sense of “survivor’s guilt” by those left behind. They may believe that
they could have done more to prevent the suicide. However, this is often not true.
Some family members may even feel a stigma, or disgrace, from the suicide. This also
is not true either. Family and friends may need counseling to assist them through their
sorrow.
The Case of the Conjoined Twins
A marathon 50-hour operation to separate 29-year-old Iranian twins joined at the head
resulted in their deaths during the surgical procedure in July 2003. The twins, Ladan
and Laleh Bijani, made a desperate plea to surgeons to give them a chance at living inde-
pendent lives. The twins knew that the operation carried deadly risks, but knowingly
accepted the risks, according to their physicians. Many of their physicians and relatives
tried to talk the twins out of having the procedure. But the women gave instructions
to their next-of-kin that they wished to be separated under all circumstances, no mat-
ter what the surgeons encountered during the surgery. Dr. Benjamin Carson, who was
a part of the neurosurgical team to separate the twins, said that he was persuaded to
proceed with the operation based on the medical evidence and the strong desire of
the twins to be separated. He stated, “These were individuals who were absolutely
determined to be separated. The reason I felt compelled to become involved is because
I wanted to make sure they had their best chance.”
However, during the operation, the surgeons found that contrary to their first
impression, the twins’ brains were fused together, and a vein graft failed, causing
the twins to hemorrhage and die. After the death of the twins, Dr. Carson said that in
hindsight he believes it was unwise for the medical team to tacitly agree to continue
with the surgery to separate the twins no matter what they encountered during the
surgery.
There have been many ethical debates about the separation of conjoined twins, such
as Ladan and Laleh, who have little chance of both surviving such a surgery. Michael
Grodin, director of medical ethics at the Boston University School of Medicine, stated,
CHAPTER 13 Death and Dying 325
Chapter Review13
Points to Ponder
1. What do you say to a dying patient who asks you,
“Why me?”
2. What are some major concerns of family members of
a dying patient?
3. Does an individual have the right to determine when
he or she wishes to die? Why or why not?
4. What are the benefits of hospice care for the termi-
nally ill?
5. Why is the ability to determine when death
has occurred so critical in today’s health care
environment?
6. What is cardiac death?
7. Can a patient write an advance directive requesting
maximum care?
Discussion Questions
1. Explain the statement, “Health care practitioners often
find it more difficult to withdraw treatment after it
has started than to withhold treatment.”
2. Describe a situation in which passive euthanasia
might be acceptable.
3. Discuss reasons against the practice of euthanasia.
4. What are the pros and cons of a viatical settlement?
“The key issue is that they were adults and could understand the risks and benefits and
make decisions on their own.” He went on to say, “Obviously, if the chances were 100
percent that the twins were going to die, then the surgeons shouldn’t have offered it. To
do so would have been akin to participating in an assisted suicide.” Grodin and other
ethicists agree that no one knows exactly where the ethical cut-off point should be for
an operation or procedure in which the odds for recovery are poor.
Some parents have opted not to have their conjoined twins separated because one
would ultimately die during the separation if they share key organs. In the case of each
twin receiving a kidney or a limb, the surgeons will often recommend separation. In
the case of a shared heart, the decision becomes an ethical dilemma because both twins
may die during the separation.
Mechanical Heart Recipient
The first implanted mechanical heart, a grapefruit-sized plastic and titanium 4-pound
heart called an AbioCor, was implanted into a 59-year-old man, Robert Tools, in July
2001. This patient did quite well with his mechanical heart until he suffered a severe
stroke from a blood clot that was believed to be caused by the mechanical device.
Mr. Tools was unable to take anticoagulant medications to reduce the risk of blood clots
forming. He spent the final days of his life partly paralyzed and breathing through a
ventilator. Before he had the mechanical heart transplant, Mr. Tools had been on the
brink of death with end-stage heart failure and had been given little chance of surviv-
ing more than 30 days. Up until the time of his stroke, he expressed gratitude after the
surgery and said that he had no regrets. Robert Tools lived for five months with his
mechanical heart. The manufacturers of the mechanical heart said the success of the
AbioCor is measured by how well it extends life and restores life’s quality.
326 PART 3 Medical Ethics
Matching
Match the responses in column B with the correct term in column A.
Review Challenge
Short Answer Questions
1. Explain the substitute judgment rule.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. What does palliative care include?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. Explain the “slippery slope” argument of assisted suicide.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What is the difference between withdrawing and
withholding life-sustaining treatment?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. Do you think the courts acted properly in granting
Michael Schiavo control over his wife’s feeding tube?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. How might the Schiavo case affect future court deci-
sions of the same nature?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
7. Describe the differences between ordinary and
extraordinary means to keep a person alive.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. What are some of the arguments opposing euthanasia?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
COLUMN A
_____ 1. proxy
_____ 2. expired
_____ 3. mercy killing
_____ 4. comatose
_____ 5. rigor mortis
_____ 6. hypothermia
_____ 7. stages of dying
_____ 8. cardiac death
_____ 9. brain death
_____ 10. active euthanasia
COLUMN B
a. body temperature is below normal
b. person acting on behalf of another person
c. legal definition of death
d. euthanasia
e. stiffness that occurs in death
f. vegetative condition
g. legal term for killing a patient
h. died
i. irreversible coma
j. Kübler-Ross’s reflection on the dying process
CHAPTER 13 Death and Dying 327
Multiple Choice
Select the one best answer to the following statements.
1. The practice of allowing a terminally ill patient to die
by forgoing treatment is called
a. active euthanasia.
b. passive euthanasia.
c. mercy killing.
d. a and c.
e. b and c.
2. An electroencephalogram is used to
a. reverse a coma patient’s condition.
b. measure cardiopulmonary function.
c. measure brain function.
d. reverse the condition of hypothermia.
e. reverse the condition of rigor mortis.
3. The Uniform Determination of Death Act
a. provides a definition of active euthanasia.
b. provides a definition of brain death.
c. is also called the doctrine of double-effect.
d. mandates that everyone entering a nursing home
must provide a written document stating the care
he or she wishes to receive.
e. discusses the treatments that might be used for a
comatose patient.
4. Criteria or standards for death include
a. rigor mortis.
b. hypothermia.
c. loss of body color.
d. biological disintegration.
e. all of the above.
5. What is the ethical term used to morally justify the
removal of a cancerous uterus from a pregnant patient?
a. mercy killing
b. extraordinary means
c. ordinary means
d. doctrine of double effect
e. advance directive
6. Another term meaning death is
a. comatose.
b. expired.
c. proxy.
d. terminally ill.
e. hypothermia.
7. A hospice provides for
a. palliative care.
b. pain medications.
c. in-patient care.
d. home care.
e. all of the above.
8. Extraordinary care means that when caring for a
comatose patient, one should include
a. CPR and mechanical breathing.
b. chemotherapy.
c. turning and hydration.
d. a and b only.
e. a, b, and c.
9. The Karen Ann Quinlan case involved
a. mercy killing.
b. removal of hydration from a comatose patient.
c. removal of a respirator from a comatose patient.
d. a heart transplant.
e. court order for a surgical procedure on an
incompetent patient.
10. Terms referring to heart and pulmonary function
include
a. cardiac.
b. comatose.
c. hypothermia.
d. cardiopulmonary.
e. none of the above.
328 PART 3 Medical Ethics
Discussion Cases
1. Analyze the Marguerite M. case discussed at the begin-
ning of this chapter using the Seven-Step Decision
Model found in Chapter 1.
a. ____________________________________________
b. ____________________________________________
c. ____________________________________________
d. ____________________________________________
e. ____________________________________________
f. ____________________________________________
g. ____________________________________________
2. Donald Hamilton, an alert 55-year-old man, was diagnosed
with inoperable pancreatic cancer. His prognosis was
poor; he was given about six months to live. He underwent
several series of chemotherapy treatments, but they were
of no benefit. He continued to lose weight, suffered from
nausea, and became weaker. After three months of che-
motherapy treatments, he stated that he wanted no further
treatment. He became bedridden and was admitted into a
nursing home for terminal care. Donald’s son, who lived in
another state, arrived at the nursing home and demanded
that his father’s physician be called immediately. The son
wanted his father to be hospitalized and placed on chemo-
therapy. When the physician explained that there was little
hope for the father’s recovery, the son threatened to sue
the physician for withdrawal of care.
a. Identify the ethical issues in the case.
____________________________________________
____________________________________________
b. In your opinion, does the son have a legitimate reason
to sue the physician? Why or why not?
____________________________________________
____________________________________________
c. What are the possible solutions to this case?
____________________________________________
____________________________________________
d. What might the physician have done to prevent the
confrontation with Donald’s son?
____________________________________________
____________________________________________
3. Lois, who is in the last stages of breast cancer, was
recently admitted into a hospice program. Her husband,
Henry, is relieved to have a hospice nurse come into their
home and help with the care of his wife. After Lois had
been receiving care for a week, Henry asked when he
should take Lois into the hospital out-patient department
for more chemotherapy. The hospice nurse said,
“I thought that you understood that since treatments
would no longer help Lois and she would ultimately die,
that she would not receive any more treatments once
she entered the hospice program.” Henry said he did not
understand this and insisted that he wanted everything
done to save Lois.
a. How could this misunderstanding have been avoided?
____________________________________________
____________________________________________
b. What discussions should Lois and Henry have had with
each other before Lois went into a hospice program?
____________________________________________
____________________________________________
c. What could hospice programs do to better inform the
general public of their purpose?
____________________________________________
____________________________________________
Put It Into Practice
Look for a recent obituary in your local newspaper. What information does it give about
the deceased person? What would you like to read about yourself if you could write
your own obituary?
Web Hunt
Visit the website of the National Hospice and Palliative Care Organization (www
.nhpco.org), and look under “find a hospice program.” Using this listing, find a hospice
in your area.
CHAPTER 13 Death and Dying 329
Critical Thinking Exercise
What would you say if you were asked for your opinion on who in our society has the
right to determine who should and should not live?
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McCullough, D. 2009. My mother, your mother: Embracing slow medi-
cine, the compassionate approach to caring for your aging loved one.
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Munson, R. 2004. Raising the dead. New York: Oxford University Press.
Nutt, A. (2018, June 7). Suicide rates rise sharply across the United States,
new report shows. Washington Post. Available at https://www.
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u-s-suicide-rates-rise-sharply-across-the-country-new-report-
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nal of Medicine, 352, 1630–1633.
Smith, W. 2003. The slippery slope from assisted suicide to legalized murder.
New York: Times Books.
Von Stamwitz, A. 2010. An ill father, a life-or-death decision. New York
Times (January 26), D5.
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https://www.helpguide.org/articles/suicide-prevention/suicide-prevention.htm
https://www.helpguide.org/articles/suicide-prevention/suicide-prevention.htm
https://www.washingtonpost.com/news/to-your-health/wp/2018/06/07/u-s-suicide-rates-rise-sharply-across-the-country-new-report-shows/?utm_term=.100f2de869c1
https://www.washingtonpost.com/news/to-your-health/wp/2018/06/07/u-s-suicide-rates-rise-sharply-across-the-country-new-report-shows/?utm_term=.100f2de869c1
https://www.washingtonpost.com/news/to-your-health/wp/2018/06/07/u-s-suicide-rates-rise-sharply-across-the-country-new-report-shows/?utm_term=.100f2de869c1
https://www.washingtonpost.com/news/to-your-health/wp/2018/06/07/u-s-suicide-rates-rise-sharply-across-the-country-new-report-shows/?utm_term=.100f2de869c1
http://HelpGuide.org
330
Chapter 14
Trends in Health Care
Learning Objectives
After completing this chapter, you will be able to:
14.1 Define key terms.
14.2 Discuss what is meant by the phrase “First,
do no harm.”
14.3 Discuss the Children’s Health Initiative
Program (CHIP).
14.4 Discuss issues relating to deafness.
14.5 Discuss issues relating to visual impairment
and blindness.
14.6 Discuss life issues of the elderly.
Key Terms
American Deaf culture
American Sign Language (ASL)
Blindness
Centers for Disease Control and
Prevention (CDC)
Children’s Health Initiative
Program (CHIP)
Fraud
Indigent
Injury
Milliman Medical Index
MRSA
Protocol
Robotics
Visual impairment
Case of Anne and the Runaway Stroller
Anne, a 75-year-old woman suffering from late-stage Alzheimer’s
disease, was walking to a neighborhood restaurant holding on to
the arms of her husband and a friend. Suddenly, a young woman,
talking on her cell phone as she was running behind a stroller
containing a young baby, ran toward Anne, veering to the side at
the last second and then continued on her run. The quick move-
ment of the stroller startled Anne, who then fell onto the cement
sidewalk. Her friend, a nurse, could tell by the angle of her leg that
Anne had probably broken her hip. Her husband called an ambu-
lance, which arrived in 10 minutes. Anne was taken to a new city
hospital where she was diagnosed in the ER with a broken hip.
Anne was immediately admitted to a room across from the
nursing station, which had an open design, allowing her to be
observed at all times. The nurses were frequently in her room to
assess her condition. In addition, her room contained a built-in
bed for close relatives to stay overnight.
Anne had surgery the day after she was admitted. Her family
came to take turns in spending time with her in the room so that
Anne was never alone. The protocol or clinical plan of treatment,
that the hospital used for all hip surgery patients was started immedi-
ately. She was up in a chair the day after surgery and started walking
with assistance a short time later. The nursing staff and a discharge
planner met with Anne’s husband and family, explaining the care
she would need. Four days after surgery, Anne was discharged to a
nursing home where she spent a week until her insurance coverage
ran out. She then went home and received home health care a few
hours a day for several weeks. However, her husband and children
did provide much of the care when she was sent home.
A month after surgery, Anne was walking with some assis-
tance—but without a limp or pain. In other words, a late-stage
Alzheimer’s patient had the same care and good results as other
hip-fracture patients have come to expect.
CHAPTER 14 Trends in Health Care 331
Introduction
Health care is an ever-changing field. There are new advances in treatments, medica-
tions, and surgical procedures. Patients are receiving better care in many health care
settings than they were 50 years ago. As with all issues relating to health care, we will
be faced with new ethical dilemmas. It might be useful to remember these wise words
of the general counsel for a major service organization: “The best way to avoid litigation
is to do it right in the first place.”
Problems in the Current Health
Care System
First, Do No Harm
According to an Institute of Medicine’s report, medical errors are killing 100,000 Ameri-
cans every year. These patients are dying from preventable medical errors including
incorrect diagnoses, drug mix-ups, needle infections, and surgical mishaps.
Close to 30 states now require that hospitals report infection rates to the public they
serve. More and more hospitals are creating educational programs for their staff in an effort
to become more careful when providing patient care. Dr. Donald Berwick at the Centers for
Medicare and Medicaid Services announced that it will no longer reimburse hospitals for
the cost of preventable complications such as wrong-type blood transfusions and bedsores.
Cost of Health Care
Until recently, cost has not always been the deciding factor in making medical decisions
in the United States. For example, a costly MRI (magnetic resonance imaging) is often
ordered to diagnose a potentially serious problem. However, the thousands of dollars
spent on MRIs may be beyond reach for uninsured, poor, and low-income families.
Expensive prescriptions that might reduce the chance of a middle-aged woman suf-
fering a hip fracture may affect only 1 in 7,000 women. According to Professor Alain
Enthoven at Stanford University, examples such as these have caused the public to think
that “insurance should cover every useful medical procedure no matter how small the
benefit or prohibitive the cost.” However, an MRI is not considered a “routine” test.
The patient would need a proper diagnosis and prior approval before having an MRI.
Another problem that has driven up the cost of medical care is that physicians have
encountered the need to practice a form of defensive medicine to avoid potential lawsuits.
The estimate is that at least $100 billion of the U.S. $1.7 trillion annual health care bill is the
cost of defensive medicine, including unneeded antibiotic therapies and advanced imaging
tests such as PET, MRI, and CT scans. In some cases, patients request these imaging pro-
cedures for aches, sprains, and cardiac assessment. As a result, some insurance companies
have issued policy statements declaring that full body scans are medically unnecessary.
There are new studies demonstrating that, in fact, excessive medical screenings can
cause unintended harm and waste as well as stress for the patient. Research has demon-
strated that yearly mammograms do not prolong the lives of low-risk women ages 40
1. Do you believe that a patient with late-stage Alzheimer’s
disease should have expensive hip replacement surgery?
Or would it be more practical for a patient at her age and
mental condition to have her hip immobilized instead of
repairing it with surgery?
2. Do you believe that having Anne released from the
hospital so early was an undue burden on her family?
3. What do you think about the care given to Anne, as well
as the design of the hospital, in this case?
4. Do you believe that the woman who startled Anne and
caused her to fall bears any responsibility for Anne’s
injury?
332 PART 3 Medical Ethics
to 59. For example, more than 89,000 women were followed for 25 years in a random-
ized controlled trial (the gold standard of testing) and determined that the problem of
unintentional harm to a patient is growing. The Office of the Inspector General for the
Department of Health and Human Services reports that 180,000 Medicare patients die
annually because of unintended harm in the course of their treatment.
In some states, medical insurance premiums were rising between 13 and 24 percent for
a package of unchanged benefits. Health plans eventually began to trim the benefits they
would offer in order to keep premium increases as low as possible. And many employers
began to drop coverage entirely for their employees. This resulted in 47 million uninsured
Americans, or about 1 in 7. According to the Milliman Medical Index, which is a standard
of measurement for health care costs, a typical family of four has seen the amount it pays
for health care rise from 18 percent of its income in 2002 to 35 percent in 2014.
Researchers at Harvard University determined that medical bills and illnesses are
currently responsible for about one-half of the nearly 1.5 million personal bankruptcies
in the United States. The study also found that the problem is not one that relates only
to a low-income population, but it also affects middle-class homeowners with some
college education. And more than 75 percent of people in medical bankruptcy were
insured when they first became ill. According to the study, many had co-payments and
deductibles they could not pay. They incurred bills for uncovered items like prescription
drugs, physical therapy, and psychiatric care. Ultimately, the high cost of health care
has caused a high rate of stress for the country.
Med Tip
Medical office personnel must treat all patients with the same consideration for the patient’s
dignity no matter what their ability to pay.
Lack of Health Care Providers
Many low-income patients are using their local hospitals as their primary care giver.
They believe that ER treatment is better, more affordable, and more convenient. Recent
studies indicate that the patients placed more trust in the hospital caregivers and had
faster service than in a physician’s office. For the Medicaid patient, the cost of using a
hospital and a doctor’s office is about the same. However, according to studies, many
low-income patients are generally sicker than patients in a higher income category. And,
thus, when they visit the ER they are often admitted to the hospital. Hospitals are trying
to educate patients to visit a physician’s office first, whenever possible.
In addition to the high costs of medical care, the proportion of physicians who
provide free care to the poor, or indigent, has declined dramatically. During 2004–
2005, 68 percent of physicians said they provided either free or discounted care to their
low-income patients. This was a decrease from 78 percent who provided this service a
decade earlier. This decrease has resulted in more patients either going without care or
using their local emergency department in lieu of a primary care physician. Pressures
such as reduced reimbursement rates, high malpractice rates, medical school debt, and
busy schedules have impacted on the physicians’ ability to provide free care. However,
a few physicians still offer some free care.
Furthermore, the lack of qualified health care providers in hospitals, clinics, and
physicians’ offices has meant a long waiting period for medical care. And in the event of
a natural disaster, such as after Hurricane Katrina in 2005, the lack of health care provid-
ers becomes even more dramatic. The New Orleans area lost half of their physicians and
had vacancies for nearly 1,000 nurses after the hurricane. An additional problem after
a disaster such as Katrina is the increased need for psychiatric care and hospital beds.
All of these are costly and almost unattainable for the poor and uninsured.
CHAPTER 14 Trends in Health Care 333
“Germ Warfare”
The Centers for Disease Control and Prevention (CDC) in Atlanta, GA, has devel-
oped guidelines for preventing infections in procedures such as insertion of central-line
catheters (an intravenous line inserted into a central vein to administer medications
and with access to the heart). Every year, around 80,000 patients develop a central-line
infection and 30,000 die from having the procedure. Johns Hopkins Hospital adopted
the CDC’s checklist with a resulting drop in their infection rate to almost zero.
According to the CDC, nearly 2 million patients a year develop hospital-based
infections (of a total 35 million patients) and two-thirds of the patients have an infec-
tion that will resist at least one drug. This is costing the nation $30 million a year. In
addition, some infections requiring hospital treatment, such as those occurring with
sports injuries, are picked up outside of the hospital. The problem is that many of the
deadliest bacteria are now drug resistant. Even many of the smaller drug companies
are now spending money on research.
MRSA (Methicillin-Resistant Staphylococcus Aureus)
MRSA is a bacterium responsible for several hard-to-treat infections in humans. It can
cause serious skin and soft-tissue infections in patients in hospitals and nursing homes. It
is a strong bacterium that is resistant to penicillin-type antibiotics. In fact, MRSA is resistant
to several antibiotics, which include penicillin (methicillin) as well as cephalosporins and
is, therefore, a more dangerous bacterium than most. MRSA is a problem in hospitals, nurs-
ing homes, prisons, and other places where people may have open wounds, intravenous
tubes, or a weakened immune system. The growth of bacteria is observed by placing a
sample of infected material removed from patients with conditions such as open wounds,
intravenous tubes, and infected surgical sites under a microscope. Healthy people can
carry MRSA without any ill effects. However, people who have medical problems such as
cancer, severe diabetes, lupus, and wounds from surgical procedures are at risk.
A registered nurse described a situation in which her bacteriology professor had the
class wipe a recently cleaned laboratory floor with a wet Q-tip. They touched the Q-tips
to slides, which were then placed under a microscope. The class observed that the slides
were teaming with microorganisms. This nurse never forgot that experience and it
influenced her behavior when treating patients. If a disposable item was dropped on the
hospital floor, her instructor’s words came back to her: “When in doubt, throw it out.”
Fraud
Unfortunately, the health care system still has issues with fraud, which is an intentional
deception or injury to another person. Injury, in the case of fraud, is a wrongful act that
results in damage to a person’s reputation or property. Examples of fraud consist of mis-
representation, concealment, or nondisclosure of a fact or misleading conduct. Therefore,
a person who represents him- or herself as a nurse must have a nursing license that is
registered in the state where he or she is practicing nursing. If there is no current license,
then a fraudulent action has occurred. In that case, misuse of the title “Registered Nurse”
is considered an unclassified felony. In addition, if this person has signed a document,
such as a medication record, with an “RN” after his or her name, this may be considered
a forgery under the law, and that person may also be arrested for committing a felony.
Other instances of fraud consist of falsifying medical documents such as a patient’s
medical chart, Medicaid billing, application for a medical license, or a medical diploma.
Health care fraud can take many forms. The government is able to perform “real-
time” analysis of all Medicare and Medicaid billings to obtain information on payments
for care. This helps to ensure that health care facilities such as hospitals, laboratories,
physicians’ offices, and other health care organizations are complying with all billing
and health care service requirements. Commissions of health care fraud, including false
334 PART 3 Medical Ethics
billing schemes, pharmacy fraud, and kick-back schemes for unnecessary health refer-
rals are crimes that can result in prison time.
The cost to the country from fraudulent claims relating to Medicare billings are said
to be in the millions. These false billings, as already noted, range from charging for a
false diagnosis, kickbacks for referrals, and providing medical procedures and services
that are not needed. In some cases of fraud, the medical provider has split reimburse-
ment for a false billing with the patient.
Some of the most publicized and egregious frauds have occurred when unsuspect-
ing people were used in drug trials. For example, in Guatemala in the 1940s, as many
as 1,500 soldiers, prisoners, and mental patients were infected with syphilis and other
sexually transmitted diseases without their knowledge. Also in the 1940s in Tuskegee,
Alabama, doctors withheld treatment from only African American men in order to
study advanced syphilis. Today, there are many restrictions in place to prevent this from
happening again. But, unfortunately, because of cases like these, many people today
are reluctant to take part in legitimate medical research or even to receive medical care.
Med Tip
There is an old adage that honesty is the best policy. In the medical field this is especially
true because of the impact fraud has on patients.
FIGURE 14.1 Prescription Drug Abuse
© Juan SiLVA/Alamy Stock Photo
Prescription Drug Abuse
Drug abuse has been an ongoing problem in the United States. However, more and more
teens and young people are now accidentally overdosing on prescription drugs. A U.S. Drug
Enforcement Agency official stated, “Kids think prescription drugs are safer than street
drugs because you can buy them in a drugstore.” Accidental fatal drug overdoses have
risen 500 percent since 1990, and the problem is now at epidemic levels. See Figure 14.1.
The most commonly abused drugs are OxyContin, Vicodin, Fentanyl, and
methadone—all synthetic versions of opium. The CDC states that opioid painkillers
cause more lethal overdoses than heroin and cocaine together. And the rate of fatal
overdose among 15- to 24-year-olds has grown 300 percent in recent years. Thomas
Andrew, New Hampshire’s chief medical examiner, states that the problem with meth-
adone, the biggest prescription drug killer in New Hampshire, is that it has a long
“half-life.” This means that it takes a long time for the pill to take effect and then it
lingers in the body at full strength. This causes young people who have taken 40 mil-
ligrams to think that there was no effect, and then take another 40- milligram pill.
CHAPTER 14 Trends in Health Care 335
By the time it works, they have 80 milligrams in their system and their respirations
stop. If the pill is taken with alcohol, it can be fatal. See Table 14.1 for “Steps to Drug
Safety for Teenagers.”
Ethnic Disparities in Health Care
Good health care is considered a benefit that all people within a society should expect.
However, Dr. John Ayanian, Professor of Medicine and Healthcare Policy at Harvard
Medical School, states that research studies are finding that African Americans, Latinos,
and American Indians do not always receive these benefits. Overt discrimination may
have been reduced over the past years, but minority Americans are more likely to fall
through the cracks of a very complex system of health care. For example, in Chicago
death rates from breast cancer were almost identical for white and African American
women in 1996. By 2003, these death rates fell 35 percent for white women and rose
12 percent for African American women.
In many cases, in addition to a lack of insurance coverage, there are language bar-
riers and even a subconscious bias against some cultures by some health care profes-
sionals. In a multinational culture such as America, this cannot be accepted.
New Advances and Improvement
in Health Care
Promoting Prevention and Health Screenings
The American Academy of Family Physicians states, “As a country we have too much
focus on illness treatment rather than on wellness and prevention, which leads to people
having problems that could be prevented.” People need to find a doctor who can help
them determine what recommended screenings, such as for prostate cancer and breast
cancer, are really needed. The U.S. Preventive Services Task Force, which is an indepen-
dent panel of experts in preventive medicine, uses scientific evidence to determine if
a potential screening will be more beneficial or harmful. They have set the “gold stan-
dard” for screening guidelines. See “Recommended Health Screenings” in Table 14.2.
Patient Rights
Patients are becoming more aware of rights they have relating to their medical care. For
example, the Health Insurance Portability and Accountability Act (HIPAA) states that
patients have a right to see their hospital charts. It also states that patients have a right
1. Don’t be afraid to talk to teens about it.
2. Store prescription drugs properly. They should be in a locked container if children are present.
3. Keep track of quantities of pills—even a few missing pills could be a red flag.
4. Properly discard medications immediately that are no longer being used.
5. Talk to other family members, such as grandparents and friends, about safe drug storage.
Table 14.1 Steps to Drug Safety for Teenagers
Cervical Cancer HIV
Colorectal Cancer Mammogram
Dental Health Osteoporosis
Diabetes Prostate Cancer
Eye Health Sexual Health
Heart Vaccinations
Table 14.2 Recommended Health Screenings
336 PART 3 Medical Ethics
to be seen in the hospital by a medical doctor, not just a resident doctor in training. See
patient rights in Table 14.3.
Use of Robotics
Robotics in medicine is the use of machines that have the capacity to perform human
tasks. Many hospitals now use mechanical devices, known as robots, to deliver supplies
such as linens, as well as medications and meals to patient care floors. They have not
replaced health care personnel but have made their work more efficient.
The Washington Hospital Center uses robots named TUGS, because of their ability
to tug heavy delivery carts of supplies such as medical equipment, meal trays, blood
samples, and bed linens. The carts are electronic and usually move on a magnetic track.
They are computerized with directions on where to go. Robots cut down on errors and
can make up to 17 deliveries a day. They have the ability, through sensors, to immedi-
ately stop if someone or something is in front of them. These mechanical devices are
allowing health care workers to perform their functions without the time-consuming
tasks of carrying heavy supplies.
Robotic Surgery
Robotic surgery is a method of performing surgery using very small tools attached
to a robotic arm. The surgeon sits at a computer station in the operating room and
actually controls the robotic arm via the computer. The robotic arm containing a small
knife makes a small incision into the anesthetized patient. Then a thin tube with a
camera attached to the end (endoscope) allows the surgeon to view very large three-
dimensional images of the body as the surgery takes place. The surgeon manipulates
the robot’s movements to perform the surgery.
This type of surgery may take longer because the robot must be set into place, but
there are smaller incisions than during open surgery. Also, the surgeon can see more of
the surgical area via the endoscope. While this form of surgery cannot be used for very
complex surgery, it has been successfully used for gall bladder removal, hip replace-
ments, hysterectomies, kidney transplants, and prostate surgery.
The Ethics of Using Robots and Robotics
Some patients might believe that their physician has turned over the control of the
surgical procedure to a machine. They need to understand that the use of robotics is
enhancing what the surgeon can accomplish. Also, some hospital employees are fearful
that, in the future, their jobs could be handled by computer-controlled robots. Supervi-
sors must be ready to handle their questions and concerns.
Health Care Trends and Reform
History of Health Care Laws and Programs
More than 25 years ago, a law was enacted stating that if patients come into an emer-
gency department in need of medical attention, they must be attended to even if they
The right to refuse to be examined, observed, or treated.
The right to request another technician to perform a procedure.
The right to be moved to a different patient room.
The right to have an advocate whenever requested.
The right to refuse any treatment.
The right to be made as comfortable as possible.
Table 14.3 Hospital Patient Rights Include
CHAPTER 14 Trends in Health Care 337
are unable to pay. This law, the Federal Emergency Treatment and Labor Act of 1986, has
now come under criticism because it has led to emergency department overcrowding
and expensive care for some nonemergency conditions.
There has been a further influx of popular programs such as the Children’s
Health Initiative Program (CHIP) established in 1997 by President Bill Clinton.
This is a state-administered program established to provide care for children from
low-income families. This program is an extension of Medicaid and now covers 7
million children. In addition, children under age 19 who are not covered by Med-
icaid are eligible for the benefits of the program. CHIP is funded by both state and
federal governments. In January 2018, Congress voted to extend CHIP funding for
another six years. See Figure 14.2.
Accountable Care Organizations
Accountable care organizations (ACOs) were formed to provide for better quality of
care for less money. An ACO is a group of health care providers, such as hospitals and
physicians, who will provide and be accountable for the medical care of a group of
patients. In many cases, under the new health care law, patients could become part of
an ACO if their physicians, hospital, and other health care specialists are part of that
organization. As with other health care organizations, their goal is to deliver and coor-
dinate care in a cost-effective manner.
Other programs include managed care organizations (MCOs), health maintenance
organizations (HMOs), and preferred provider organizations (PPOs), as well as Medi-
care and Medicaid (discussed in Chapter 4) and the Consolidated Omnibus Budget
Reconciliation Act (COBRA) (discussed in Chapter 8).
There are ethical concerns that some of the managed care organizations can become
too large and powerful. For example, there are some ACOs that participate in Medi-
care’s Shared Savings Program, which are supplying services to 2.4 million Medicare
patients.
Health Maintenance and Insurance
In spite of these well-intentioned laws and programs, many Americans were still not
receiving good medical care. The uninsured were unlikely to have a personal physician,
any preventive care, and, thus, were likely to be seen in emergency departments for pre-
ventable medical problems. In addition, because many of the uninsured Americans had
FIGURE 14.2 Young Boy Covered under the
Children’s Health Initiative Program
© Tetra Images/Alamy Stock Photo
338 PART 3 Medical Ethics
to pay for health care services with cash, this resulted, in some cases, in their inability to
pay all of their medical bills. The Medicare patient population has reached an all-time-
high with over 45 million people. This growth resulted in requiring one-fifth of all the
national health spending. Plans to provide better, more affordable, and more widely
available medical insurance remain controversial and unresolved.
The Ethics of Care
Health Literacy
A 2010 study commissioned by the Institute of Medicine noted that, in general, a signifi-
cant number of Americans are functionally illiterate and only 12 percent of adults are
proficient in health literacy. This means that many people have difficulty using infor-
mation on a medication label or even understanding the definition of a medical term.
This communication gap has meant that health care reform must address policies that
mandate how medically related descriptions are presented to patients. For example,
information on drug labels and written health information that is given to patients must
be in clear and easy-to-understand wording. The Agency for Healthcare Research and
Quality found that low reading ability and health literacy were linked to poorer health
and a higher risk of death. They also found a link between low reading ability including
health literacy and more frequent use of hospital emergency departments.
Patients should:
• Ask questions about what services their health care covers.
• Make sure they know what medication the physician has ordered for them or their
children and why it is prescribed.
• Make sure the physician knows what medications they are already taking.
• Be sure to call the physician for results of all tests.
• Ask questions if they don’t understand something.
Med Tip
It is important for health care workers to ask patients, who they suspect of having dif-
ficulty with reading, to read aloud all instructions. Also, large print often helps with better
understanding.
How Do We Teach Our Patients?
The health care environment is ever changing and it is the responsibility of all health
care professionals to keep learning. It is important for health care professionals to have
a good understanding of information found on government websites. In many cases,
they offer a clear description of facts that are important for the consumer. Ideally, health
care workers can present these facts in an easy-to-understand language, or in writing,
for the patient/consumer.
American Deaf Culture
The culture and language of the Deaf tend to meld together or intertwine. In order to
better understand the American Deaf Culture it is important to understand their lan-
guage. American Sign Language (ASL) is used by the Deaf to communicate with both
the Deaf population and the hearing population. ASL is considered to be a complete
CHAPTER 14 Trends in Health Care 339
language. It has its own grammar, different from English grammar, with its own rules,
idioms, jokes, and poetry. (There is more about ASL in the next section.) The Deaf cul-
ture prefer to always have the word “Deaf” capitalized.
Med Tip
The first school for the Deaf in America opened in 1817 with seven students. It is now
called The American School for the Deaf and has had several thousand students pass
through its doors. It is located in West Hartford, Connecticut.
Med Tip
The Deaf are a part of a proud community and they are offended by any implication
that they are inferior to hearing persons. The Deaf have their own culture and, at the
same time, they live and work within the American culture.
Sources of information about laws and resources for the Deaf include the Ameri-
cans with Disabilities Act (ADA), passed by Congress in 1990 to ensure the rights of
persons with disabilities. It prohibits discrimination in employment, public services,
transportation, communication, and other areas. The National Association of the Deaf
is also an excellent resource for information. In addition, each state has a commission
for the Deaf.
Many Deaf persons do not like to be called “hearing impaired.” The term “impaired”
implies that something is broken, which is incorrect.
Communicating with the Deaf
American Sign Language
American Sign Language (ASL) is often the first language of the Deaf or hard-of-
hearing person. ASL is often more effective than writing everything down on paper.
Medical professionals do not always understand ASL. However, interpreters, using sign
language, are available to facilitate communication. They sign everything that is voiced
and they voice everything that is signed. Thus, they can communicate with the patient,
the hearing family, and the medical professionals. Many hospitals have an employee
who, while possibly also having other duties, can communicate in ASL. Speaking is not
required to use sign language, because hand gestures are used to communicate. ASL is
considered to be a visual language and is designed to unify the Deaf culture.
Med Tip
Every state has a Commission for the Deaf and Hard of Hearing.
Because English may not be the first language of a Deaf person, it may mean that
the person’s understanding of written English is at a lower level than that of a hearing
person of the same age. Schools and organizations need to take this into consideration
when communicating with the Deaf.
American Sign Language is not considered a universal language. Other countries
have their own sign languages. ASL is designed to assist the American Deaf culture but
does not exactly copy American English. Therefore, persons who wish to communicate
with the Deaf on a regular basis should become knowledgeable and adept at using
sign language. Relying totally on pen and paper to communicate with the Deaf is not
340 PART 3 Medical Ethics
as effective. “Lip reading” is not considered to be very effective because only 30 to 35
percent of spoken words can be understood.
Cochlear Implant
In some cases the Deaf do not want to use a tool for hearing, such as a hearing aid,
because they do not believe that they are impaired. However, a cochlear implant can
improve hearing in some people. It involves an electrical device surgically implanted
into the cochlea of the patient’s ear to transmit sound to the Deaf individual. It allows
the person to hear some sounds that they would otherwise not hear. A tool for the Deaf,
it is much like a hearing aid. However, the implant can change the way sound is heard,
and some people in the Deaf culture do not support the use of an implant.
Some implants work very well, but some people believe that the implant may
reduce any residual hearing they may have. Twenty-five percent of the Deaf do not use
a cochlear implant at all.
Teaching the Deaf
Teachers of the Deaf must also become interpreters for their students. In some cases
the teacher will bring a part of the world into the classroom to the students. The teach-
ers must have sensitivity to the diversity of their students and respect for the differ-
ent cultures and backgrounds the students represent. Above all, teachers will require
understanding for their students.
A teacher of the Deaf states that “Medical appointments can raise important issues
for the patient. There should be an interpreter available to prevent any misunderstand-
ing regarding medical care. Considering the serious nature of medical appointments
and discussions, providing an ASL interpreter may be necessary for some appointments
to reduce misunderstandings about medical issues, both emotional and life-threaten-
ing.” These appointments usually require a complete understanding of everything the
patient is told by the physician.
Situations in which an interpreter may be needed for effective communications
include:
• When discussing a patient’s medical symptoms, concerns, medications, and medi-
cal history
• When explaining or describing medical diagnoses, conditions, tests and treatment
options, surgery, and procedures
• When giving a diagnosis, recommended treatment, and the prognosis
Med Tip
Considering the serious nature of medical appointments, procedures, and discussions, it
is always wise to have an ASL interpreter for a Deaf patient. This can help to avoid misun-
derstanding of important medical issues, instructions, and treatments.
Interpreters
Interpreters are often used to facilitate communication between a Deaf person and a
hearing person or persons. The use of an interpreter allows the patient to gain more
control over their communication and also over their health issues.
Interpreters are extremely helpful when a Deaf person is communicating with a
doctor. Ideally, the interpreter prefers to be in the line of vision of both the patient and
the medical provider. Interpreters want patients to be in control of their communication
as well as their own health care.
While lip reading can be somewhat effective in the case of a parent and child, it is
only partially understood. As noted earlier, it is estimated that only 30 to 35 percent of
spoken words are understood by the Deaf person using lip reading.
CHAPTER 14 Trends in Health Care 341
Some mechanisms for attracting the attention of a Deaf person include:
• Flicking a light switch a few times
• Gently tapping the person on the shoulder or arm
• Waving if the person is within sight
RESOURCES Rochester Institute of Technology, National Technical Institute for the
Deaf:
https://www.rit.edu/ntid/radscc/sites/rit.edu.ntid.radscc/files/file_attacj,emts/
deaf_culture_tip_sheet_pdf
Gallaudet University: http://www3.gallaudet.edu/clerc-center/info-to-go/
deaf-culture/american-deaf-culture.html
Special thanks to a teacher of the Deaf, Amy Fremgen, for her insightful input on this
section.
Med Tip
I long to accomplish a great and noble task, but it is my chief duty to accomplish humble
tasks as though they were great and noble. The world is moved along, not only by the
mighty shoves of its heroes, but also by the aggregate of the tiny pushes of each honest
worker. –Helen Keller
Blindness and Visual Impairment
Braille
When he was still a teenager, Louis Braille (1809–1852), who was blind, developed his
system for reading using six raised dots. Each dot grouping represented one of the 26
letters of the alphabet. They could be “read” by the fingertips of the user. This method
allowed young students to learn to spell as well as to read. Braille’s method was not
accepted immediately because there was another system, called Barbier’s code, which
used a system of twelve dot groupings for each letter of the alphabet. It took Braille a
few years to perfect his system in which each character of six raised dots would be used
to represent a letter in the alphabet. Braille later became a teacher of the blind.
The braille method allows a blind person the freedom to read books and other
literature that is printed in braille. It has made reading possible for millions of people
who are blind. It also allows a blind person to look directly at an audience they are
addressing while reading the prepared text with their fingers. Blind persons can also
read in a darkened room because, again, they are reading with their fingers.
Degrees of Visual Impairment and Blindness
Most persons with a limited ability to see can still lead a normal life. They are able to
read signs, bus numbers, and maps by using a magnifying glass. They are also able to
use public transportation such as buses and trains. In fact, they are generally as able
to handle activities of daily living as are most people. There may be a need for special
glasses, help with crossing busy streets, and even assistance in boarding buses and
trains. In addition, a person with a visual impairment may need assistance in reading
instructions, such as on prescription medicine bottles. Most people are very happy to
provide assistance when requested by a person who is visually impaired or blind.
There are many degrees of visual impairment, up to and including blindness.
Vision terms listed by the American Foundation for the Blind include:
• Functional limitation—vision impaired enough to affect activities of daily living
such as reading, safe pedestrian travel, self-care, cooking, and recreational activities
https://www.rit.edu/ntid/radscc/sites/rit.edu.ntid.radscc/files/file_attacj,emts/deaf_culture_tip_sheet_pdf
https://www.rit.edu/ntid/radscc/sites/rit.edu.ntid.radscc/files/file_attacj,emts/deaf_culture_tip_sheet_pdf
http://www3.gallaudet.edu/clerc%E2%80%90center/info%E2%80%90to%E2%80%90go/deaf%E2%80%90culture/american%E2%80%90deaf%E2%80%90culture.html
http://www3.gallaudet.edu/clerc%E2%80%90center/info%E2%80%90to%E2%80%90go/deaf%E2%80%90culture/american%E2%80%90deaf%E2%80%90culture.html
342 PART 3 Medical Ethics
• Legal blindness—level of vision loss legally defined to determine eligibility for
benefits. In the United States, this means a medically diagnosed central visual acu-
ity of 20/200 or less in the better eye.
• Low vision—measurable vision but not adequate for the person to accomplish
visual tasks even with prescribed corrective lenses
• Total blindness—inability to see anything with either eye
• Visual impairment—a term that encompasses both those who are blind and those
with low vision
For many blind people their blindness may even go unnoticed. For example, some
legally blind persons wear glasses with very thick lenses to provide better eyesight.
However, without the glasses they may not be able to read or see much that is around
them with any clarity. It is important to know that blind persons may demonstrate a lack
of facial expressions or even inappropriate involuntary expressions. In some cases, these
inappropriate expressions can be discussed in a kind manner with the blind person. But
the discussion should always be done privately with a kind intent and not as criticism.
Blind persons and those with low vision can find many new technologies to assist
them with daily life functions. For example, the Braille Alphabet Card is a pocket-size
card that has both braille and printed letters on it. A deaf-blind person must be able to
read braille in order to use the card. A Tellatouch is a small typewriter-like device
that raises braille letters under the deaf-blind reader’s fingertip. There is also a
device that contains braille-writer keys for use by blind persons. Audiobooks are, of
course, popular with the blind and visually impaired.
Visually impaired and blind children develop according to the same patterns and
stages that govern the development of sighted children. The effect that the loss of vision
will have on an individual child depends on several issues, such as the age at which
the loss occurred, the type of loss, the severity, and the ability of the child to function
with the loss.
Deaf-blind children who are entering kindergarten are protected by the Education
for all Handicapped Children Act. This act ensures the child will have free, appropriate
public education in an unrestricted setting. In addition, this includes an education plan
that is designed according to each child’s needs.
Corneal transplant is the most common form of human transplant surgery that
is performed today. Donor transplants come from people who have left their corneas
to science after their death. There is an excellent rate of success with this type of eye
surgery, 90 percent according to some sources.
Vision Disorders
Some of the wide variety of vision disorders and eye diseases are explained next.
Blindness
The leading causes of blindness include diabetic retinopathy, glaucoma, macular degen-
eration, and cataracts.
DIABETES OR DIABETIC RETINOPATHY Diabetic retinopathy is a complication of
diabetes that causes damage to the blood vessels and light-sensitive tissues at the back
of the eye. It is a major cause of blindness in the United States. It can be treated with
surgery or laser surgery. If discovered and treated early and with adequate control of
the underlying diabetic condition, most blindness from diabetic retinopathy can be
prevented. Complications can lead to other serious eye problems, such as cataracts or
glaucoma.
GLAUCOMA Glaucoma is a leading cause of blindness in the United States. Accord-
ing to the National Society to Prevent Blindness, approximately one in every seven
CHAPTER 14 Trends in Health Care 343
blind Americans is blind as a result of glaucoma. In some cases, there is a family history
of persons with glaucoma.
Glaucoma is characterized by a large or abnormal rise in a person’s intraocular
pressure, which is pressure exerted by the liquid inside the eye. This increasing pres-
sure has a negative effect on certain parts of the eye, including the optic nerve and
the retina. Glaucoma usually can be diagnosed during an eye examination when the
doctor determines that the pressure within the eye is elevated. Physicians can provide
treatment aimed at slowing the progress of glaucoma. Treatment usually includes pre-
scription eye drops and/or, in some cases, surgery. At the present time, glaucoma can
be controlled but not cured.
MACULAR DEGENERATION Macular degeneration is a disease of the eye that is
a progressive worsening or deterioration of the light-sensitive cells of the retina and
choroid (membrane) of the eye. Age-related macular degeneration is the leading cause
of blindness in the United States. This disease can affect people in middle age, as early
as 60 years old. One of the earliest symptoms is when a small “blind spot” occurs in
a person’s field of vision. Risk factors include smoking, high blood pressure, and a
longtime exposure to sunlight.
CATARACTS Cataracts are the result of small protein fibers clumping together to
cloud the lens of the eye. This tends to develop slowly and may not be detected right
away. A person’s vision may become blurred and worsen very slowly. There can also
be sensitivity to glare from sunlight and halos around lights at night. The most com-
mon type is an age-related cataract, which can develop as early as a person’s 40s or 50s.
The cause of cataracts is currently unknown. Cataract surgery, which has a very high
success rate, provides a permanent cure by removing the defective lens and replacing
it with an artificial lens.
Color Vision Deficiency
Color vision deficiency is often referred to as “color blindness,” although it is not a
form of blindness. The chief cause of color blindness is a single-gene disorder, resulting
from a defective chromosome that is more predominate in males than in females. Color
blindness can also be caused by other eye diseases and by aging. It does not affect the
ability to see or the person’s visual field.
With color blindness, a person sees colors very differently from what others see.
In some cases it is difficult to distinguish one color from another or different shades of
color. A person with color vision deficiency may need help deciphering such items as
traffic signals, relying on the position of the red light at the top and the green light at
the bottom. There is no cure for color vision deficiency. Some prescription lenses can
help with red-green color distinction. Some mobile apps can help people identify colors.
Nystagmus
Nystagmus is a constant, involuntary, rapid movement of the eyeball, which may move
horizontally, vertically, or in circles. This constant movement can impair a person’s
vision. The amount of eye movement or nystagmus can be measured as the person
gazes at certain objects. The patient may also develop blurred vision and an inability
to focus.
There are several causes of nystagmus including hypertension; stroke; lesions in
the brainstem, vascular system, or cerebellum; overstimulation of the systems within
the inner ear; drug or alcohol toxicity; or inflammation caused by encephalitis or
meningitis.
Some treatments can help various cases of nystagmus such as stopping drug or
alcohol consumption, surgery, or special glasses. Some people deal with their “danc-
ing eyes” by reading large-print books and turning up the print size on their computer,
tablet, or phone. Brighter lighting may also help.
344 PART 3 Medical Ethics
Retinoblastoma
Retinoblastoma is a rare, malignant tumor of the retina in the eye. This tumor can occur
in both eyes and usually occurs in children between the ages of 2 and 4. There may be
no obvious symptoms of this disease, which is considered to be inherited. People who
have this gene in their family are often advised to seek genetic counseling. Early treat-
ment methods include radiation therapy and chemotherapy.
Communicating with the Blind and Visually Impaired
Some commonsense actions help in communicating with the blind or visually
impaired:
• Make your presence known or gain the person’s attention by speaking and/or
gently touching the person’s arm.
• Introduce yourself and explain what you do and why you are talking with the
person.
• Talk directly to the person and not just to the person’s sighted companion.
• When talking in a group, identify yourself as the speaker and make it clear who
you are talking to.
• Use verbal responses, not gestures or nods and head shakes.
• Explain any actions you are taking.
• Let the person know when you are moving farther away or leaving the room.
• Ask the person if he or she requires guidance or support.
• Provide information in a way the person can access, for example in audio, large
print, or braille. Go over the information to be sure that he or she understands it
before sending it home with the person.
RESOURCES Esche, Jeanne, & Griffin, Carol. 1980. A handbook for parents of deaf-blind
children. Lansing, MI: Michigan School for the Blind,
Scholl, Geraldine. Foundations of education for blind and visually handicapped children
and youth. New York: American Foundation for the Blind, Inc.
The National Department of Education Act established the Office of Special Educa-
tion and Rehabilitation Service. This office oversees programs created by the Vocational
Rehabilitation Act, the Randolph-Sheppard Act, and the Education of the Handicapped
Act.
American Foundation for the Blind. “Key Definitions of Statistical Terms/ Vision Terms.”
http://www.afb.org/info/blindness-statistics/key-definitions-of-statistical-terms/25
Royal National Institute of Blind People. “Ten Tips to Help You Commu-
nicate with a Person with Sight Loss.” https://www.rnib.org.uk/nb-online/
top-tips-communication
Life Issues of the Elderly
People live longer on average today than ever before. With this good news comes
a longer period of time for illnesses to develop in people as they age. But with this
also comes new challenges for health care professionals as they deal with the aging
population.
Early memory loss occurs in many of the elderly. As this develops further into
dementia and Alzheimer’s disease, the need for specialized care facilities becomes very
important. Health care professionals fill these needs through home-health personnel,
assisted living facilities, nursing homes with trained caregivers and staff, and advanced
https://www.rnib.org.uk/nb%E2%80%90online/top%E2%80%90tips%E2%80%90communication
https://www.rnib.org.uk/nb%E2%80%90online/top%E2%80%90tips%E2%80%90communication
http://www.afb.org/info/blindness%E2%80%90statistics/key%E2%80%90definitions%E2%80%90of%E2%80%90statistical%E2%80%90terms/25
CHAPTER 14 Trends in Health Care 345
care facilities such as Alzheimer’s units that monitor the activities of its patients all day
long.
In addition to these challenges, which some would consider opportunities for health
care professionals to display their skills and sense of caring, other illnesses can also
develop. For example, we see increased instances of Parkinson’s disease. And various
forms of cancer can occur if for no other reason that it has more time to develop within
the aging population. Prostate cancer in men and breast cancer in women have more
opportunity to grow in people as they live longer. Caring for all of these diseases in an
aging population is both a challenge and an opportunity for all health care workers.
The loss of a spouse is a serious issue to the elderly. Many have been together for
50 years or more. To suddenly be alone can be an extreme emotional burden on a sur-
viving spouse. It will take a special kind of empathy from all in the health care field to
help survivors cope with their loss. And, when combined with other possible illnesses
already described, it will be a very special challenge as well.
As we look to the future, this situation is not likely to subside. We will likely
continue to see an increasing number of elderly living longer and dealing with many
medical and emotional difficulties. Health care professionals will have to diligently
prepare themselves for this phenomenon in order to serve the needs of this growing
population.
Some issues and diseases that most commonly affect the elderly include:
• Dementia: This is a broad term that refers to a progressive mental disorder that
can be described as confusion, disorientation, deterioration of intellectual capac-
ity, impairment of judgment, and uncontrolled impulses. Potential causes include
hyperthyroidism, subdural hematoma, anemia, benign brain tumor, and drug
intoxication.
• Alzheimer’s disease: This condition is the most common cause of dementia. It is
a chronic, progressive disorder that is said to account for more than 50 percent
of all dementias. It is most commonly found in people older than 65 but occurs
earlier in some people. Pathological changes in the brain may occur, causing mild
memory loss that can progress to deterioration of intellectual functions. Speech
and language problems as well as personality changes may occur. It is said to occur
in equal frequency in both men and women. The Alzheimer’s Association lists 10
warning signs of the disease:
• Memory changes that disrupt daily life
• Difficulty completing familiar tasks
• Challenges in planning or solving problems
• Confusion with time and place
• New problems with words in speaking and writing
• Trouble understanding visual images and spatial relationships
• Misplacing things and losing the ability to retrace steps
• Decreased and poor judgment
• Withdrawal from work or social activities
• Changes in mood and personality
The first signs of Alzheimer’s may include a slight forgetfulness. In addition, the
ability to handle stress may decline. The symptoms generally become more obvi-
ous as the disease progresses; for example, there may be an inability to recognize
familiar objects or people.
Unfortunately, currently there is no test to diagnose Alzheimer’s in a living person.
Upon death of the person, an autopsy can be used to detect plaques in the brain that
346 PART 3 Medical Ethics
are definitive of Alzheimer’s. However, depending on the symptoms, a physician
can diagnose a probable case of Alzheimer’s with some accuracy.
• Parkinson’s disease: This is a slowly progressive chronic nervous disease that is char-
acterized by a very fine, slow, spreading tremor (called a pill-rolling tremor) in the
fingers. This can eventually progress into muscular weakness, a shuffling gait, and
rigidity and immobility of the hands. The person’s face may become expression-
less, and the person’s speech may become slow and measured. There may also
be some immobility of the facial muscles and expressions. There are medications
that have been effective in treating Parkinson’s disease. In most cases, the cause of
Parkinson’s is unknown.
• Huntington’s disease (also called Huntington’s chorea): This is an inherited disease of
the central nervous system that occurs between the ages of 25 and 55. It can cause
progressive, involuntary movements (called chorea) and may eventually end in
dementia. There is currently no cure, but there are medical treatments to alleviate
the involuntary movements.
• Hemophilia: This is a hereditary disorder, which can develop early in life, in which
the person is missing a specific coagulation factor in the blood. As a result, there
may be a greater loss of blood during some procedures such as dental procedures
or surgery. The person with hemophilia generally suffers bleeding into the joints,
especially the knees, elbows, and ankles, causing painful and restricted joint move-
ment. The person’s living environment should be made as safe as possible to avoid
any injuries that may cause bleeding.
Allocation of Scarce Time and Resources
Today’s physicians are dealing with many issues and problems that were not seen a
decade or two ago. These include numerous virulent infections and diseases, some of
which are caused by unhealthy living conditions. A lack of proper food for many adults
and growing children is a concern in many cities. In addition, prenatal care for expectant
mothers is unavailable in many small towns and often unaffordable when it is available.
The elderly population, especially in rural communities, often requires help in finding
transportation to doctors and to purchase food.
There are many legal and ethical challenges in the struggle to fairly allocate scarce
time and resources.
Med Tip
More research is needed on preventing medical errors. Research has shown that most
medical errors are not because of inherently bad health care professionals. Reporting
such errors should not be addressed by punishment or legal action. Rather, most errors
are the result of systemic problems, such as poorly coordinated care, the absence or
underuse of safety nets, as well as unwarranted variations in health care professionals’
practice patterns.
The caregiver we would all like to be listens to the patient, carefully and clearly
documents symptoms, and does not carelessly discuss patients with other health care
professionals.
CHAPTER 14 Trends in Health Care 347
Discussion Questions
1. Discuss how the statement, “First, do no harm”
impacts your chosen profession.
2. Explain the use of the term “injury” as it relates to a
case of fraud.
3. Discuss hospital patients’ rights as described in
Table 14.3.
4. Discuss the advantages and ethics of using robotic
surgical procedures.
5. Discuss why health care professionals should study
Deaf culture.
Chapter Review
Points to Ponder
1. In your opinion, what health services should be avail-
able for Alzheimer’s patients?
2. Why is MRSA a major concern for hospitals?
3. Discuss the statement, “There are concerns that some
of the managed care organizations could become too
large and powerful.”
4. Discuss how you would explain drug safety to young
people.
5. Discuss the impact that the high cost of health care
has had on our country.
14
Review Challenge
Short Answer Questions
1. Explain what the long “half-life” of the drug metha-
done means.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
2. Explain defensive medicine as it relates to the cost of
health care.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
3. What is “germ warfare” and why is it important?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
4. What are some examples of fraud as discussed in this
chapter?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
5. What are accountable care organizations?
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
6. Describe the CHIP program.
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
348 PART 3 Medical Ethics
Multiple Choice
Select the one best answer to the following statements:
1. MRSA is:
a. A bacterium.
b. A standard of measurement for health care costs.
c. Difficult to treat with standard types of
antibiotics.
d. a and c.
e. All of the above.
2. The most commonly abused drugs, especially by
young people looking for a “high,” are:
a. Methadone.
b. OxyContin.
c. Vicodin.
d. All of the above.
e. None of the above.
3. Fraud is an intentional deception or injury to another
person that results in damage to a person’s reputation
or property. Examples of fraud in the health care field
include:
a. A doctor or nurse practicing without a license.
b. False Medicare billing.
c. Drinking while driving.
d. Conducting drug tests on groups of people with-
out their knowledge.
e. a, b, and d.
4. Which of the following pieces of sage advice is
applicable to the health care profession?
a. “Honesty is the best policy.”
b. “When in doubt, throw it out.”
c. “First, do no harm.”
d. All of the above.
e. None of the above.
5. Hospital patients have the following rights:
a. The right to refuse any treatment
b. The right to be moved to another patient room
c. The right to be made as comfortable as possible
d. All of the above
e. None of the above
6. The following are examples of accountable care
organizations except:
a. HMOs.
b. CDC.
c. PPOs.
d. MCOs.
e. POSs.
7. The following are recommended health screenings,
except:
a. Mammograms.
b. Sexual health.
c. Rotator cuff tears.
d. Dental health.
e. Osteoporosis.
Matching
Match the responses in column B with the correct term in column A.
COLUMN A
_____ 1. indigent
_____ 2. protocol
_____ 3. fraud
_____ 4. robotics
_____ 5. ACO
_____ 6. CHIP
_____ 7. MRSA
COLUMN B
a. deception or injury
b. machines performing human tasks
c. antibiotic-resistant bacterium
d. clinical plan
e. Accountable Care Organization
f. poor
g. Children’s Health Incentive Program
CHAPTER 14 Trends in Health Care 349
Discussion Cases
1. Tony, a 91-year-old veteran of World War II, has lived in
a big city all of his life and has used Veteran Administra-
tion (VA) facilities for health care that are free under his
VA coverage. He also has a small residence in another
nearby state where he spends weekends. One weekend,
while in this nearby state, Tony fell and cut his arm and
hit his head. A neighbor applied a pressure dressing to
his bleeding arm and then took him to a nearby emer-
gency department. The ER started an IV and sutured the
cut on his arm. The ER also administered an EKG, which
detected a heart problem. Tony was then admitted to the
hospital. When she returned home, the neighbor who had
taken Tony to the hospital noticed that she had blood on
her clothing.
When the neighbor visited Tony the next day in the hos-
pital, she found that he was on isolation and all visitors
had to wear gowns and masks. She asked his nurse why
he was on isolation. The nurse asked for, and Tony gave,
permission to discuss his situation with the neighbor. The
nurse then told the neighbor that Tony had tested positive
for MRSA.
a. Did the nurse do anything wrong by telling the neigh-
bor about Tony’s condition as the patient did give his
permission?
____________________________________________
____________________________________________
b. Should the ER nurse have cautioned the neighbor
about the possibility of MRSA when she saw blood on
the neighbor’s clothing?
____________________________________________
____________________________________________
2. Tony, who was discussed in the previous case, returns to
a VA hospital in the city for his preventive care exam. He
is supplied with samples of medications to use for various
medical conditions. He does not take his records from his
doctor or emergency department visit in the nearby state
to the VA medical center. Nor does he take his VA records
to the nearby state to show to his doctor and hospital
located there.
a. What are the risks of this behavior?
____________________________________________
____________________________________________
b. Could the excellent care he receives at both hospitals
actually harm Tony in any way?
____________________________________________
____________________________________________
Put It Into Practice
Look for a recent article in your local newspaper about health care ethics. Evaluate the
information in the article using what you have learned in your health care class.
Web Hunt
Search the website of the Department of Health and Human Services (www.HHS.gov)
and discuss the mission of the organization.
Critical Thinking Exercise
How would you deal with the ethnic disparities, or differences, in health care for some
people?
http://www.hhs.gov/
350 PART 3 Medical Ethics
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Washington, D.C.: Gallaudet University Press (http://gupress.
gallaudet.edu)
A useful Web site is:
Americans with Disabilities Act (ADA) (https://www.ada.gov/hosp-
combre.htm)
The ADA site is about the law. The site offers information concerning
the ADA.
https://www.rit.edu/ntid/radscc/sites/rit.edu.ntid.radscc/files/file%E2%80%90attachments/deaf%E2%80%90culture%E2%80%90tip%E2%80%90sheet
https://www.rit.edu/ntid/radscc/sites/rit.edu.ntid.radscc/files/file%E2%80%90attachments/deaf%E2%80%90culture%E2%80%90tip%E2%80%90sheet
https://www.ada.gov/hospcombre.htm
https://www.ada.gov/hospcombre.htm
http://www3.gallaudet.edu/clerc%E2%80%90center/info%E2%80%90to%E2%80%90go/deaf%E2%80%90culture/american%E2%80%90deaf%E2%80%90culture.html
http://www3.gallaudet.edu/clerc%E2%80%90center/info%E2%80%90to%E2%80%90go/deaf%E2%80%90culture/american%E2%80%90deaf%E2%80%90culture.html
http://gupress.gallaudet.edu/
http://gupress.gallaudet.edu/
351
Appendix A
Codes of Ethics
The Nuremberg Code
1. The voluntary consent of the human subject is absolutely essential. This means
that the person involved should have legal capacity to give consent; should be so
situated as to be able to exercise free power of choice, without the intervention of
any element of force, fraud, deceit, duress, overreaching or other form of constraint
or coercion; and should have sufficient knowledge and comprehension of the ele-
ments of the subject matter involved as to enable him to make an understanding
and enlightened decision. This latter element requires that before the acceptance of
an affirmative decision by the experimental subject there should be made known to
him the nature, duration and purpose of the experiment; the method and means by
which it is to be conducted; all conveniences and hazards reasonable to be expected;
and the effects upon his health or person which may possibly come from his par-
ticipation in the experiment.
The duty and responsibility for ascertaining the quality of the consent rests upon
each individual who initiates, directs, or engages in the experiment. It is a personal
duty and responsibility which may not be delegated to another with impunity.
2. The experiment should be such as to yield fruitful results for the good of society,
unprocurable by other methods or means of study, and not random and unneces-
sary in nature.
3. The experiment should be so designed and based on results of animal experimen-
tation and knowledge of the natural history of the disease or other problem under
study that the anticipated results will justify the performance of the experiment.
4. The experiment should be so conducted as to avoid all unnecessary physical and
mental suffering and injury.
5. No experiment should be conducted where there is a priori reason to believe that
death or disabling injury will occur; except, perhaps, in those experiments where
the experimental physicians also serve as subjects.
6. The degree of risk to be taken should never exceed that determined by the humani-
tarian importance of the problem to be solved by the experiment.
7. Proper preparations should be made and adequate facilities provided to protect
the experimental subject against even remote possibilities of injury, disabilities, or
death.
8. The experiment should be conducted only by scientifically qualified persons. The
highest degree of skill and care should be required through all stages of the experi-
ment of those who conduct or engage in the experiment.
352 Appendix A Codes of ethics
9. During the course of the experiment the human subject should be at liberty to
bring the experiment to an end if he has reached the physical or mental state where
continuation of the experiment seems to him to be impossible.
10. During the course of the experiment the scientist in charge must be prepared to
terminate the experiment at any stage, if he has probable cause to believe, in the
exercise of good faith, superior skill, and careful judgment required of him that a
continuation of the experiment is likely to result in injury, disability, or death to
the experimental subject.
Source: Reprinted from The Trials of War Criminals before the Nuremberg Military Tribunals. Washington,
DC: U.S. Government Printing Office, 1948.
Nurses’ Code of Ethics (American
Nurses Association)
The American Nurses Association (ANA) has developed a code for nurses that dis-
cusses the nurses’ obligation to protect the patient’s privacy, respect the patient’s dig-
nity, maintain competence in nursing, and assume responsibility and accountability for
individual nursing judgments. This code states the nurses’ ethical responsibilities and
is summarized here:
1. The nurse provides services with respect for human dignity and the uniqueness
of the client, unrestricted by considerations of social or economic status, personal
attributes, or the nature of the health problems.
2. The nurse safeguards the client’s privacy by judiciously protecting information of
a confidential nature.
3. The nurse acts to safeguard the client and the public when healthcare and safety are
affected by the incompetent, unethical, or illegal practices of any person.
4. The nurse assumes responsibility and accountability for individual nursing judg-
ments and actions.
5. The nurse maintains competence in nursing.
6. The nurse exercises informed judgment and uses individual competence and
qualifications as criteria in seeking consultation, accepting responsibilities,
and delegating nursing activities to others.
7. The nurse participates in activities that contribute to the ongoing development of
the profession’s body of knowledge.
8. The nurse participates in the profession’s efforts to implement and improve
standards of nursing.
9. The nurse participates in the profession’s efforts to establish and maintain condi-
tions of employment conducive to the high quality of nursing care.
10. The nurse participates in the profession’s efforts to protect the public from misin-
formation and misrepresentation and to maintain the integrity of nursing.
11. The nurse collaborates with members of the healthcare profession and other
citizens in promoting community and national efforts to meet the health needs
of the public.
Source: Reprinted with permission from Code for Nurses with Interpretative Statements, copyright 1985.
Washington, DC: American Nurses Publishing: American Nurses Foundation/American Nurses
Association.
Appendix A Codes of ethics 353
Code of Ethics of the American
Association of Medical Assistants
(Aama)
The AAMA has developed a Code of Ethics for Medical Assistants. The introduction says,
“The Code of Ethics of AAMA shall set forth principles of ethical and moral conduct as
they relate to the medical profession and the particular practice of medical assisting.”
The Code then states:
Members of the AAMA dedicated to the conscientious pursuit of their profession,
thus desiring to merit the regard of the entire medical profession and the respect of the
general public which they serve, do hereby pledge themselves to strive for:
Human Dignity
I. Render service with full respect for the dignity of humanity;
Confidentiality
II. Respect confidential information obtained through employment unless legally autho-
rized or required by responsible performance of duty to divulge such information;
Honor
III. Uphold the honor and high principles of the profession and accept its disciplines;
Continued Study
IV. Seek continually to improve the knowledge and skills of medical assistants for the
benefit of patients and professional colleagues;
Responsibility for Improved Community
V. Participate in additional service activities aimed toward improving the health and
well-being of the community.
In addition to the Code of Ethics of the AAMA, a creed, or statement of intent, has been
developed by this organization. The creed states:
I believe in the principles and purposes of the profession of medical assisting.
I endeavor to be more effective.
I aspire to render greater service.
I protect the confidence entrusted to me.
I am dedicated to the care and well-being of all people.
I am loyal to my employer.
I am true to the ethics of my profession.
I am strengthened by compassion, courage, and faith.
Source: Copyright by the American Association of Medical Assistants, Inc. Reprinted by permission.
354
Appendix B
Case Citations
Abernathy v. Sister of St. Mary’s, 446 S.W. 2d 599 (Mo. 1969).
Agnew-Watson v. County of Almeda, 36 Cal. Rptr. 2d 196 Ct. App. (Cal. 1994).
Allen v. Mansour, 681 F. Supp. 1232, E.D. (Mich. 1986).
Armstrong v. Flowers Hosp., 33 F.3d 1308 (11th Cir. 1994).
In re Axelrod, 560 N.Y.S.2d 573 (App. Div. 1990).
In re Baby M, 537 A.2d 1227 (N.J. 1988).
Barnes Hospital v. Missouri Commission on Human Rights, 661 S.W.2d 534 (Mo. 1983).
Bendiburg v. Dempsey, 19 F.3d 557 (11th Cir. 1994).
Big Town Nursing Home v. Newman, 461 S.W.2d 195 (Texas Civ. App. 1970).
Blank v. Palo Alto-Stanford Ctr., 44 Cal. Rptr. 572 (Cal. Ct. App. 1965).
Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. Ct. App. 1984).
Bouvia v. Superior Court, 225 Cal. Rptr. 287 (Cal. App. 1986).
Brinson v. Axelrod, 499 N.Y.S.2d 24 (App. Div. 1986).
Buchanan v. Kull, 35 N.W.2d 351 (Mich.1949).
Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir. 1985).
Canterbury v. Spence, 464 F.2d 772 (D.C. 1972).
Child Protection Group v. Cline, 350 S.E.2d 541 (W. Va. 1986).
Cline v. Lund, 31 Cal. App. 3d 755 (1973).
Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990).
Darling v. Charleston Community Mem. Hosp., 211 N.E. 2d 253 (1965).
Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
DeMay v. Roberts, 9 N.W.146 (Mich. 1881).
Doe v. Borough of Barrington, 729 F. Supp. 376 (N.J. 1990).
In re Doe, 533 A2d 523 (R.I. 1987).
Downs v. Sawtelle, 574 F.2d 1 (Cir. 1978).
Erickson v. Dilgard, 252 2d 705 (N.Y.S. 1962).
Estate of Berthiaume v. Pratt, 365 QA.2d 792 (Me. 1976).
Fair v. St. Joseph’s Hosp., 437 S.E.2d 875 (N.C. App. 1933).
Garcia v. Elf Atochem, N. Am., 28 F.3d 446 (5th Cir. 1994).
Goff v. Doctors General Hospital, 333 P.2d 29 (Cal. Ct. App. 1958).
Goforth v. Porter Med. Assoc., Inc., 755 P.2d 678 (Okla. 1988).
Grijalva v. Shalala, 946 F. Supp. 747 (Ariz. 1996).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Grubbs v. Medical Facilities of America, Inc., 879 F. Supp. W.D. (Va. 1995).
Guilmet v. Campbell, 385 Mich. 57, 188 N.W.2d 601 (1971).
Appendix B Case Citations 355
Harris v. McRae, U.S. 297 (1980).
Harvet v. Unity Medical Ctr., 428 N.W.2d 574 (Minn. Ct. App. 1988).
Hayes v. Shelby Memorial. Hosp., 726 F.2d 1543 (11th Cir. 1984).
Heller v. Ambach, 433 N.Y.S.2d 281 (1979).
Hickman v. Sexton Dental Clinic, P.A. 367 S.E.2d 453 (S.C. Ct. App. 1988).
H. L. v. Matheson, 450 U.S. 398 (1981).
Hurlock v. Park Lane Med. Ctr. Inc., 709 S.W.2d 872 (Mo. Ct. App. 1985).
Insurance Co. of N. Am. v. Prieto, 442 F.2d 1033 (6th Cir. 1971).
Jackovach v. A. L. Yocum, Jr., 237 N.W. 444 (Iowa 1931).
James v. Jacobson, 6 F.3d 233 (4th Cir. 1993).
Jeczalik v. Valley Hosp., 434 A.2d 90 (N.J. 1981).
Jenkins v. Bogalusa Comm. Med. Ctr., 340 So.2d 1065 (La. Ct. App. 1976).
Keene v. Brigham & Women’s Hosp., Inc. 439 Mass. 223 (2003).
Kern v. Gulf Coast Nursing Home, Inc., 502 So.2d 1198 (Miss. 1987).
Korman v. Mallin, 858 P.2d 1145 (Alaska 1993).
Lambert v. Bessey, 83 Eng. Rep. 220 (1681).
Landau v. Medical Board of California, 71 Cal. Rptr. (Cal. App. 1998).
Landeros v. Flood, 551 P.2d 389 (Cal. 1976).
Love v. Heritage House Convalescent Ctr., 463 N.E.2d 478 (Ind. Ct. App. 1983).
Lovelace Medical Ctr. v. Mendez, 805 P.2d 603 (N.M. 1991).
Maher v. Roe, 432 U.S. 464 (1977).
Mandel v. Doe, 888 F2d. 783 (11th Cir. 1989).
Matter of Baby K; 16F.3d, 590 (4th Cir. 1994).
McLaughlin v. Cooke, 774 P.2d 1171 (Wash. 1989).
Minn. Stat., §214.18(s), (4).
Mohr v. Williams, 104 N.W.12 (Minn. 1905).
Moon Lake Convalescent Center v. Margolis, 435 N.E.2d 956 (Ill. App. Ct. 1989).
Morena v. South Hills Health System, 462 A.2d 680 (Pa. 1983).
Morrison v. MacNamara, 407 A.2d 555 (D.C. 1979).
Murray v. Vandevander, 522 P.2d 302 (Okla. Ct. App. 1974).
Norton v. Argonaut Ins. Co., 144 So.2d 249 (La. App. 1962).
O’Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891).
Odomes v. Nucare, Inc., 653 F.2d (6th Cir. 1981).
O’Neill v. Montefiore Hosp., 202 N.Y.S2d, 436 (App. Div. 1960).
Osborne v. McMasters, 41 N.W. 543 (Minn. 1889).
Pardazi v. Cullman Med. Ctr., 838 F.2d 1155 (11th Cir. 1988).
Parrish v. Clark, 145 So. 848 (Fla. 1933).
People v. Gandotra, 14 Cal. Rptr. 2d 896 (11th Cal. App. 1992).
People v. Scofield, 95 Cal. Rptr, 405 (Cal. App. 1971).
356 Appendix B Case Citations
People v. Smithtown Gen. Hosp., 736, 402 N.Y.S.2d 318 (Sup. Ct. 1978).
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
Planned Parenthood of Southeastern Pennsylvania v. Casey, 50 U.S. 833 (1992).
Polonsky v. Union Hospital, 418 N.E.2d 620 (Mass. App. Ct. 1981).
Poor Sisters of St. Francis v. Catron, 435 N.E.2d 305 (Ind. Ct. App. 1982).
Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944).
Quinby v. Morrow, 340 F.2d 584 (Cir. 1965).
In re Quinlan, 355 A.2d 647 (N.J. 1976).
Rodgers v. St. Mary’s Hospital, 556 N.E.2d 913 (Ill. App. Ct. 1990).
Roe v. Wade, 410 U.S.113 (1973).
Rowland v. Christian, 443 P2d. 561 (Cal. 1968).
Rust v. Sullivan, 500 U.S. 173 (1991).
Satler v. Larsen, 520 N.Y.S.2d 378 (App. Div. 1987).
In re Schroeder, 415 N.W.2d 436 (Minn. Ct. App. 1987).
Simkins v. Moses H. Cone Hospital, 323 F.2d 959 (4th Cir. 1963).
Skinner v. Oklahoma, 316 U.S. 535 (1942).
Smith v. Cote, 513 A.2d 341 (N.H. 1986).
Starks v. Director of Div. of Employment Section, 462 N.E.2d 1360 (Mass. 1984).
State v. Fierro, 603 P.2d 74 (Ariz. 1979).
State Dep’t. of Human Services v. Northern, 563 S.W.2d 197 (Tenn. Ct. App. 1978).
St. John’s Reg. Health Ctr. v. American Cas. Co., 980 F.2d 1222 (8th Cir. 1992).
Swanson v. St. John’s Lutheran Hosp., 597 P.2d 702 (Mont. 1979).
Tarasoff v. Regents of the University of California, 17 Cal. 3d 342 (1976).
Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974).
Thompson v. Brent, 245 So.2d 751 (La. App. 1971).
Thor v. Boska, 113 Cal. Rptr. 296, Ct. App. (1974).
Tugg v. Towney, 864 F. Supp. 1201, S.D. (Fla. 1994).
U.S. v. Busse, Dey, Lupulescu, and Failla, 833 F.2d 1014 (U.S. App. 1987).
United States v. NME Psychiatric Hosps., Inc., No. 94-0268.
Watson v. Idaho Falls Consol. Hosp., Inc., 720 P.2d 632 (Idaho 1986).
Weaver v. Ward, 80 Eng. Rep. 284 (1616).
Williams v. Summit Psychiatric Ctrs., 363 S.E.2d 794 (Ga. App. 1987).
Wis. Stat., §252.15(8).
Woolfolk v. Duncan, 872 F. Supp. 1381, E.D. (Pa. 1995).
Zatarain v. WDSU-Television, Inc., WI 16777 E.D. (La. 1995).
Zoterell v. Repp 153 N.W. 692 (Mich. 1915).
Zucker v. Axelrod, 527 N.Y.S.2d 937 (1988).
357
Abandonment withdrawing medical care from a patient without
providing sufficient notice to the patient. (5)
Abuse misuse, excessive or improper use. (7)
Accreditation a voluntary process in which an agency is requested
to officially review health care institutions, such as hospitals,
nursing homes, and educational institutions, to determine
compliance. (3)
Acquired immunodeficiency syndrome (AIDS) a disease result-
ing in infections that occur as a result of exposure to the human
immunodeficiency virus (HIV), which causes the immune system to
break down. (5)
Active euthanasia actively ending the life of, or killing, a patient
who is terminally ill. (13)
Addiction an acquired physical or psychological dependence on a
drug. (7)
Administrative law a branch of law that covers regulations set by
government agencies. (2)
Advance directive the various methods by which a patient has the
right to self-determination prior to a medical necessity; includes liv-
ing wills, health care proxies, and durable power of attorney. (5)
Affirmative Action program to remedy discriminating practices in
hiring minority group members. Also covered under Title VII. (8)
Affirmative defense allows the defendant (usually a physician or
hospital) to present evidence that the patient’s condition was the
result of factors other than the defendant’s negligence. (6)
Against medical advice (AMA) when a noncompliant patient leaves
a hospital without a physician’s permission. (5)
Age Discrimination in Employment Act (ADEA) protects persons
40 years or older against employment discrimination because of
age. (8)
Agent person authorized to act on behalf of a patient. (5)
Alleges asserts or declares without proof. (11)
Alternative dispute resolution (ADR) methods for resolving a civil
dispute that do not involve going to court. (6)
American Deaf Culture the culture and language of the Deaf popu-
lation in America. (14)
American Sign Language (ASL) often the first language of Deaf or
hard-of-hearing persons. (14)
Americans with Disabilities Act (ADA) prohibits employers who
have more than 15 employees from discriminating against disabled
individuals. (8)
Americans with Disabilities Act Amendments Act (ADAAA)
broadened and clarified the definition of “disability.”
Amniocentesis a test for the presence of genetic defects in which a
needle is used to withdraw a small amount of the amniotic fluid that
surrounds the fetus in the uterus. (12)
Amoral lacking or indifferent to moral standards. (1)
Anencephalic missing a brain and spinal cord. (12)
Applied ethics the practical application of moral standards to the
conduct of individuals involved in organizations. (1)
Arbitration submitting a dispute for resolution to a person other
than a judge. (6)
Arbitrator a person chosen to decide a disagreement between two
parties. (6)
Artificial insemination the injection of seminal fluid that contains
male sperm into a female’s vagina from her husband, partner, or
donor by some means other than sexual intercourse. (12)
Artificial insemination donor (AID) the donor of sperm that is
injected into a female’s vagina during artificial insemination. (12)
Artificial insemination husband (AIH) a woman’s husband or part-
ner who is the donor of sperm that is injected into her vagina during
artificial insemination. (12)
Assault imminent apprehension of bodily harm. (2)
Assisted suicide suicide committed by a person with the assistance
of someone else; a form of euthanasia that concerns some ethicists
because it could lead to a form of legalized murder. (13)
Associate practice a legal agreement in which physicians agree to
share a facility and staff but do not, as a rule, share responsibility for
the legal actions of each other. (4)
Assumption of risk a legal defense that prevents a plaintiff from
recovering damages if the plaintiff voluntarily accepts a risk associ-
ated with the activity. (6)
Autonomy independence. (8)
Autopsy a postmortem examination of organs and tissues to deter-
mine the cause of death. (7)
Battery bodily harm and unlawful touching (touching without
consent of patient). (2)
Beyond a reasonable doubt evidence that is almost an absolute
certainty that a person did commit a crime. (2)
Bias unfair dislike or preference for something. (8)
Bioethicists persons who specialize in the field of bioethics. (1)
Bioethics also called biomedical ethics, the moral dilemmas and
issues of advanced medicine and medical research. (1)
Blindness the most advanced degree of visual impairment. (14)
Bloodborne pathogens disease-producing microorganisms trans-
mitted by means of blood and body fluids containing blood. (8)
Bonding a special type of insurance that covers employees who
handle financial statements, records, and cash. (3)
Borrowed servant doctrine a special application of respondeat supe-
rior in which an employer lends an employee to someone else. (6)
Brain death an irreversible coma from which a patient does not
recover; results in the cessation of brain activity. (13)
Breach neglect of an understanding between two parties; failing to
perform a legal duty. (2)
Breach of contract the failure, without legal excuse, to perform any
promise or to carry out any of the terms of an agreement; failure to
perform a contractual duty. (2)
Bureau of Narcotics and Dangerous Drugs (BNDD) an agency
of the federal government responsible for enforcing laws covering
statutes of addictive drugs. (7)
Cap limit. (6)
Capitation rate a fixed monthly fee paid by an HMO to health care
providers for providing medical services to patients who are mem-
bers of that HMO. (4)
Glossary
Note: Number in parentheses indicates chapter where key term is found.
358 Glossary
Cardiac death death in which the heart has stopped functioning. (13)
Cardiopulmonary pertaining to heart and lung function. (13)
Case law also called common law, case law is based on decisions
made by judges. (2)
Censure to find fault with, criticize, or condemn. (11)
Centers for Disease Control and Prevention (CDC) a component of
the U.S. Department of Health and Human Services that serves as
the nation’s health protection agency. (14)
Certification a voluntary credentialing process usually offered by a
professional organization. (4)
Checks and balances designed by the framers of the Constitution
so that no one branch of government would have more power than
another and so that each branch of government is scrutinized by
other branches of government. (2)
Child Abuse Prevention and Treatment Act prohibited withholding
of medical treatment solely because the infant is disabled. (12)
Children’s Health Initiative Program (CHIP) established in 1997 to
provide care for children from low-income families. (14)
Chromosomes threadlike structures within the nucleus (center) of a
cell that transmit genetic information. (11)
Civil law relationships between individuals or between individuals
and the government, which are not criminal. (2)
Civil Rights Act permits the court to award both compensatory
damages and punitive damages to mistreated employees. (8)
Claims-made insurance liability insurance that covers the insured
party for only the claims made during the time period the policy is
in effect (or policy year). (6)
Class action lawsuit lawsuit filed by one or more people on behalf of
a larger group of people who are all affected by the same situation. (2)
Clearinghouse a private or public health care entity that facilitates
the processing of nonstandard electronic transactions into HIPAA
transactions (e.g., a billing service). (10)
Clinical Laboratory Improvement Amendment (CLIA) established
minimum quality standards for laboratories. (8)
Cloning generating a group of identical matching cells that come
from a single common cell. (11)
Closing argument closing speech or summary made by the attor-
neys for both the plaintiff and the defendant. (2)
Coding up a form of medical fraud; billing for a diagnosis with a
higher compensation rate than the actual diagnosis. (2)
Cognitively impaired mentally challenged or developmentally
delayed. (12)
Comatose vegetative condition. (13)
Common law also called case law, common law is based on deci-
sions made by judges. (2)
Comparable worth also known as pay equity, the theory that ex-
tends equal pay requirements to all persons doing equal work. (1)
Comparative negligence a defense, similar to contributory negli-
gence, that the plaintiff’s own negligence helped cause the injury;
not a complete bar to recovery of damages but only damages based
on the amount of the plaintiff’s fault. (6)
Compassion ability to have a gentle, caring attitude toward patients
and fellow employees. (1)
Compensatory damages an amount of money awarded by the court
to make up for loss of income or emotional pain and suffering. (6)
Competent capable of making a decision without mental confusion
due to drugs, alcohol, or other reasons. (2)
Compounding the combination and mixing of drugs and
chemicals. (7)
Confidentiality refers to keeping private all information about a
person (patient) and not disclosing it to a third party without the
patient’s written consent. (3)
Conscience clause legislation or regulation stating that hospitals
and health care professionals are not required to assist with such
procedures as abortion and sterilization. (4)
Consent the voluntary agreement that a patient gives to allow a
medically trained person the permission to touch, examine, and
perform a treatment. (5)
Consideration in contract law, consideration is something of value
given as part of the agreement. (2)
Consolidated Omnibus Budget Reconciliation Act (COBRA) offers
government financing for health insurance coverage continuation
after an employee has been laid off a job. (8)
Constitutional law the inviolable rights, privileges, or immunities
secured and protected for each citizen by the Constitution of the
United States or by the constitution of each state. (2)
Contraception birth control. (12)
Contract law that division of law that includes enforceable promises
and agreements between two or more persons to do or not to do a
particular thing. (2)
Contributory negligence conduct on the part of the plaintiff that is
a contributing cause of injuries; a complete bar to recovery of dam-
ages. (6)
Control group research subjects who receive no treatment. (11)
Controlled Substances Act of 1970 a federal statute that regulates
the manufacture and distribution of drugs that are capable of
causing dependency. (7)
Copayment an agreed-upon fee paid by the insured for certain
medical services; usually $10 to $20. (4)
Coroner a public health officer who holds an investigation (inquest)
if a person’s death is from an unknown or violent cause. (7)
Corporation a type of medical practice, as established by law, which
is managed by a board of directors. (4)
Cost/benefit analysis also called utilitarianism, an ethical ap-
proach in which the benefit of the decision should outweigh the
costs. (1)
Covered entities health care organizations covered under HIPAA
regulations such as public health authorities, health care clearing-
houses, self-insured employers, life insurers, information systems
vendors, and universities. (10)
Covered transactions certain electronic transactions of health care
information that are mandated under HIPAA. (10)
Credibility gap an apparent disparity between what is said or writ-
ten and the actual facts. (9)
Credible believable or worthy of belief. (9)
Credit Card Accountability and Disclosure Act (Card) establishes
guidelines for use of an individual’s credit information. (8)
Creditor person or institution to whom a debt is owed. (8)
Criminal case one in which court action is brought by the govern-
ment against a person or groups of people accused of committing a
crime, resulting in a fine or imprisonment if found guilty. (2)
Criminal laws set up to protect the public from the harmful acts of
others. (2)
Curative care attempt is made to cure the patient; the opposite of
palliative care. (13)
Damages any injuries caused by the defendant; usually a monetary
award is given as compensation. (6)
Data statistics, figures, or information. (7)
Glossary 359
Debtors persons who owe money. (8)
Defamation of character making false and/or malicious statements
about another person; includes libel and slander. (2)
Defendant person or group of people sued civilly or prosecuted
criminally in a court of law. (2)
Defensive medicine ordering more tests and procedures than are
necessary in order to protect oneself from a lawsuit. (6)
Deidentifying removing descriptive information about a patient. (10)
Delegation the transfer of responsibility for a patient’s care from
one caregiver to another. (4)
Deposition oral testimony that is made before a public officer of the
court to be used in a lawsuit. (2)
Dereliction neglect, as in neglect of duty. (6)
Diagnostic related groups (DRGs) designations used to identify
reimbursement per condition in a hospital; used for Medicare
patients. (4)
Direct cause the continuous sequence of events, unbroken by any
intervening cause, that produces an injury and without which the
injury would not have occurred. (6)
Disclosed made known. (9)
Discovery the legal process by which facts are discovered before a
trial. (2)
Discovery rule legal theory that provides that the statute of limita-
tions begins to run at the time the injury is discovered or when the
patient should have known of the injury. (3)
Discrimination unfair or unequal treatment. (8)
Dispensing distribution, delivery, disposing, or giving away a drug,
medicine, prescription, or chemical. (7)
Do not resuscitate (DNR) a designation placed on a patient’s medi-
cal record indicating that in the case of cessation of circulation and
breathing, artificial resuscitation (CPR) is not to be done. (5)
Doctrine of professional discretion means that a physician may de-
termine, based on his or her best judgment, if a patient with mental
or emotional problems should view the medical record. (9)
Donut Hole a gap in payment causing an amount of out-of-pocket
costs the patient must pay for medications even though they are on
Medicare. (4)
Double-blind test a research design in which neither the
experimenter nor the patient knows who is getting the research
treatment. (11)
Drug Enforcement Administration (DEA) a division of the
Department of Justice that enforces the Controlled Substances Act
of 1970. (7)
Drug-Free Workplace Act employers must certify that they main-
tain a drug-free workplace. (8)
Due process the entitlement of all employees to have certain proce-
dures followed when they believe their rights are in jeopardy. (1)
Durable power of attorney a legal agreement that allows an agent
or representative of the patient to act on behalf of the patient. (5)
Duty obligation or responsibility. (6)
Duty-based ethics focuses on performing one’s duty to various
people and institutions. (1)
Electroencephalogram (EEG) test to measure brain activity. (13)
Electronic Health Record (EHR) electronically captured health in-
formation that includes tracking clinical conditions, reporting clini-
cal quality measures, and using this information to include patients
and their families in their care. (9) (10)
Electronic Medical Record (EMR) fully computerized method of
medical record keeping. (9) (10)
Electronic protected health information (EPHI) information
protected under the Security Rule of HIPAA setting the admin-
istrative, physical, and technical safeguards for electronic health
information. (10)
Embezzlement the illegal appropriation of property, usually money,
by a person entrusted with its possession. (2)
Embryo unborn child between the second and twelfth week after
conception. (12)
Emergency Medical Treatment and Active Labor Act (EMTALA)
a section of COBRA dealing with patient dumping. (8)
Empathy the ability to understand the feelings of another person
without actually experiencing the pain or distress that a person is
going through. (1)
Employee Assistance Program (EAP) a management-financed, confi-
dential counseling referral service designed to help employees and/or
their family members assess a problem such as alcoholism. (7)
Employee Retirement Income Security Act (ERISA) regulates
employee benefits and pension plans. (8)
Employer Identification Number (EIN) a number assigned to an
employer for purposes of identification. (10)
Employer Identifier Standard a standard number based on an
employer’s tax ID number or EIN that is used for all electronic
transmissions. (10)
Employment-at-will the employment takes place at either the will
of the employer or the employee. (8)
Encryptions scrambling and encoding information before sending it
electronically. (9)
Endorsement an approval or sanction. (3)
Equal Credit Opportunity Act prohibits businesses (including
hospitals) from denying or granting credit based on race and gender,
referred to as discrimination. (8)
Equal Employment Opportunity Act (EEOA) authorizes the EEOC
to sue employers in federal court on behalf of people whose rights
have been violated under Title VII. (8)
Equal Employment Opportunity Commission (EEOC) the group
that monitors Title VII of the Civil Rights Act. (8)
Equal Pay Act makes it illegal for an employer to discriminate on
the basis of gender in payment to men and women who are per-
forming the same job. (8)
Ethics the branch of philosophy relating to morals and moral prin-
ciples. (1)
Ethnocentric a belief that one’s cultural background is better than
any other. (8)
Eugenic (involuntary) sterilization sterilization of certain categories
of persons, such as the insane, in order to prevent them from passing
on defective genes to their children. (12)
Eugenics the science that studies methods for controlling certain
characteristics in offspring. (12)
Euthanasia the administration of a lethal agent by another person
to a patient for the purpose of relieving intolerable and incurable
suffering. (11) (13)
Exclusive provider organization (EPO) a type of managed care that
combines the concepts of the HMO and PPO. (4)
Expert witness a medical practitioner or other expert who, through
education, training, or experience, has special knowledge about a
subject and gives testimony about that subject in court, usually for
a fee. (2)
Expired died. (13)
Expressed contract an agreement that is entered into orally or in
writing. (2)
360 Glossary
Expulsion the act of forcing out. (11)
Facial recognition technology a technology that has the ability to
check each face entering a building against a database of known
dangerous persons. (10)
Fair Credit Reporting Act establishes guidelines for use of an indi-
vidual’s credit information. (8)
Fair Debt Collection Practices Act prohibits unfair collection prac-
tices by creditors. (8)
Fair Labor Standards Act (FLSA) establishes the minimum wage,
requires payment for overtime work, and sets the maximum hours
employees covered by the act may work. (8)
False imprisonment occurs in health care when a medical profes-
sional, or a person hired by that professional, takes an action to
confine a patient. (2)
Family and Medical Leave Act (FMLA) allows both the mother
and the father to take a leave of absence for up to 12 weeks, in any
12-month period, when a baby is born. (8)
Feasance doing an act or performing a duty. (6)
Federal Insurance Contribution Act (FICA) requires employers to
contribute to Social Security for employees. (8)
Federal Rules of Evidence rules that govern the admissibility of
evidence into federal court. (6)
Federal Wage Garnishment Law restricts the amount of the pay-
check that can be used to pay off a debt. (8)
Fee splitting an agreement to pay a fee to another physician or
agency for the referral of patients; this is illegal in some states and is
considered to be an unethical medical practice. (4)
Felony a serious crime that carries a punishment of death or impris-
onment for more than one year. Examples are murder, rape, robbery,
and practicing medicine without a license. (2)
Fetus unborn child from the third month after conception until
birth. (12)
Fidelity loyalty and faithfulness to others. (1)
Firewalls software to prevent unauthorized users. (9)
Fixed-payment plan a payment plan for medical bills that offers
subscribers (members) complete medical care in return for a fixed
monthly fee. (4)
Food and Drug Administration (FDA) an agency within the De-
partment of Health and Human Services that ultimately oversees
and enforces laws regarding drug sales and distribution. (7)
Forensic medicine branch of medicine concerned with the law, espe-
cially criminal law. (7)
Franchise a business run by an individual to whom a franchisor
grants the exclusive right to market a product or service in a certain
market area. (4)
Franchisee person or company who holds a franchise. (4)
Fraud the deliberate concealment of the facts from another person
for unlawful or unfair gain. (6, 14)
Fraudulent deceitful. (2)
Free Appropriate Public Education (FAPE) requires school districts
to provide free appropriate public education to each qualified per-
son with a disability. (8)
Garnishment court order that requires an employer to pay a portion
of an employee’s paycheck directly to one of the employee’s creditors
until the debt is resolved. (8)
Gatekeeper the person, such as a primary care physician, or entity,
such as an insurance company, that approves patient referrals to
other physicians or services. (4)
Gene markers list of genes that are responsible for disease. (11)
Gestational period time before birth during which the fetus is
developing, usually nine months. (12)
Good Samaritan laws state laws that help protect health care profes-
sionals and ordinary citizens from liability while giving emergency
care to accident victims. (3)
Group practice three or more physicians who share the same facility
and practice medicine together. (4)
Guardian ad litem court-appointed guardian to represent a minor or
unborn child in litigation. (3)
Habituation the development of an emotional dependence on a
drug due to repeated use. (7)
Harvested removed organs or embryos. (11, 12)
Health care plan an individual or group plan that provides or pays
for medical care. (10)
Health care proxy a document signed by a person appointing an-
other person to act for them in making health care decisions on their
behalf. (13)
Health Care Quality Improvement Act provides for peer review of
physicians by other physicians and health care professionals. (4)
Health Insurance Portability and Accountability Act of 1996
(HIPAA) regulates the privacy of patients’ health information. (10)
Health maintenance organization (HMO) a type of managed
care plan that offers a range of health services to plan members
for a predetermined fee per member by a limited group of
providers. (4)
Health record all written and computer-generated documentation
relating to the patient. (9)
HIPAA-defined permissions permission to use information based
on the reason for knowing, or use of, the information. (10)
HITECH Act Health Information Technology for Economic and
Clinical Health; it expands HIPAA by including support for busi-
nesses. (10)
Hospice multidisciplinary, family-centered care designed to provide
care and supportive services to terminally ill patients and their
families. (13)
Human genome the complete set of genes within the 23 pairs of hu-
man chromosomes. (11)
Human Genome Project a research program funded by the federal
government to “map” and sequence the total number of genes
within the 23 pairs, or 46 chromosomes. (11)
Human immunodeficiency virus (HIV) the virus that causes the
immune system to break down and can eventually result in the
disease AIDS. (5)
Hypothermia state in which body temperature is below normal
range. (13)
Implied consent an agreement that is made through inference by
signs, inaction, or silence. (5)
Implied contract an agreement that is made through inference by
signs, inaction, or silence. (2)
In loco parentis Latin for “in place of a parent”; a person assigned
by a court to act in loco parentis stands in place of a child’s parent
or parents and possesses parental legal rights and responsibilities
toward the child. (5)
Incident report a means of documenting problem events within a
hospital or other medical facility. (3)
Incompetent patient one who is determined to be unable to provide
for his or her own needs and protection. (5)
Indictment a written charge presented to the court by the grand jury
against a defendant. (2)
Indigent a person who is impoverished and without funds. (1, 4, 14)
Glossary 361
Individuals with Disabilities Education Act (IDEA) the reauthor-
ized and revised Americans with Disabilities Act to align with the
No Child Left Behind Act. (8)
Induced abortion an abortion caused by artificial means such as
medications or surgical procedures. (12)
Informed (or expressed) consent consent granted by a person after
the patient has received knowledge and understanding of potential
risks and benefits. (5)
Injury in the case of fraud, a wrongful action that results in damage
to a person’s reputation or property. (14)
Inquest an investigation held by a public official, such as a coroner,
to determine the cause of death. (7)
Institutional review board (IRB) a hospital or university board of
members who oversee any human research in that facility. (11)
Integrity the unwavering adherence to one’s principles; dedication
to maintaining high standards. (1)
Intentional torts occur when a person has been intentionally or
deliberately injured by another. (2)
Invasion of privacy the unauthorized publicity of information about
a patient. (2)
In-vitro fertilization the process of combining ovum and sperm
outside of a woman’s body. (12)
Joint Commission on Accreditation of Healthcare Organizations
(The Joint Commission) an agency that oversees hospital accredi-
tation standards. (3)
Jurisdiction the power to hear a case. (2)
Just cause legal reason. (8)
Justice-based ethics based on the moral restraint of “the veil of
ignorance.” (1)
Law of agency the legal relationship formed between two
people when one person agrees to perform work for another
person. (6)
Laws rules or actions prescribed by a governmental authority that
have a binding legal force. (1)
Liable legal responsibility for one’s own actions. (6)
Libel any publication in print, writing, pictures, or signs that injures
the reputation of another person. (2)
Licensure a mandatory credentialing process that allows an indi-
vidual to perform certain skills. (4)
Life-support systems systems such as ventilators/respirators and
feeding tubes that allow medical practitioners to sustain a patient’s
life. (13)
Litigation a dispute that has resulted in one party suing another. (2)
Litigious excessively inclined to sue. (1)
Living will a legal document in which a person states that
life-sustaining treatments and nutritional support should not be
used to prolong life; a type of advance directive. (5)
Malfeasance performing an illegal act. (6)
Malpractice professional misconduct or demonstration of an unrea-
sonable lack of skill with the result of injury, loss, or damage to the
patient. (2) (6)
Managed care organization (MCO) a type of medical plan that pays
for and manages the medical care a patient receives. (4)
Material safety data sheet (MSDS) an information sheet that provides
specific information on handling and disposing of chemicals safely. (7)
Mediation using the opinion of a third party to resolve a civil dis-
pute in a nonbinding decision. (6)
Medicaid federal program, implemented by the individual states, to
provide financial assistance for the indigent. (4)
Medical ethics moral conduct based on principles regulating the
behavior of health care professionals. (1)
Medical etiquette standards of professional behavior that physi-
cians use for conduct with other physicians. (1)
Medical examiner a physician, usually a pathologist, who can inves-
tigate an unexplained death and perform autopsies. (7)
Medical informatics the application of communication and infor-
mation to medical practice, research, and education. (10)
Medical practice acts laws established in all 50 states that define
the practice of medicine as well as requirements and methods for
licensure in a particular state. (1)
Medical record all the written and computer-generated documentation
relating to a patient. (9)
Medicare federal program that provides health care coverage for
persons over 65 years of age as well as for disabled persons or those
who suffer kidney disease or other debilitating ailments. (4)
Mercy killing another term for voluntary euthanasia. (13)
Mentally challenged cognitively impaired or developmentally
delayed. (12)
Microfiche miniaturized photographs of records. (9)
Milliman Medical Index a standard of measurement for health care
costs. (14)
Minimum necessary standard means that the provider must make
a reasonable effort to limit the disclosure of patient information
to only the minimum amount that is necessary to accomplish the
purpose of the request. (10)
Minor a person who has not reached the age of maturity, which in
most states is 18. (5)
Misdemeanors less serious offenses than felonies; punishable by
fines or imprisonment of up to one year. These include traffic viola-
tions and disturbing the peace. (2)
Misfeasance the improper performance of an otherwise proper or
lawful act. (6)
Morality the quality of being virtuous or practicing the right
conduct. (1)
Morbidity rate the rate of sick people or cases of disease in relation-
ship to a specific population. (7)
Mortality rate death rate. (7)
MRSA (methicillin-resistant Staphylococcus aureus) a bacterium
responsible for several hard-to-treat infections in humans. (14)
Municipal ordinances laws that are passed by city government. (2)
National Labor Relations Act prohibits employer actions, such as
attempting to force employees to stay out of unions, and labels these
actions as “unfair labor practices.” (8)
National Organ Transplant Law of 1984 federal law that forbids the
sale of organs in interstate commerce. (11)
National Practitioners Data Bank (NPDB) a national data
bank of actions taken against health care practitioners for
noncompliance and fraudulent activities that assists with
peer reviews. (4) (10)
Negligence an unintentional action that occurs when a person either
performs or fails to perform an action that a “reasonable person”
would or would not have committed in a similar situation. (2, 6)
Nominal damages a slight or token payment awarded by the court. (6)
Noncompliant patient one who fails, or refuses, to cooperate with
the recommendations of a health care professional. (5)
Nonfeasance the failure to perform an action when it is necessary. (6)
Nontherapeutic research research conducted that will not directly
benefit the research subject. (11)
362 Glossary
Notice of Privacy Practices (NPP) a written statement that details
the provider’s privacy practices. (10)
Occupational Safety and Health Act (OSHA) requires an employer
to provide a safe and healthy work environment; the employer must
protect the worker against hazards. (8)
Occurrence insurance also called claims-incurred insurance, liability
insurance that covers the insured party for all injuries and incidents
that occurred while the policy was in effect (policy year), regardless of
when they are reported to the insurer or when the claim is made. (6)
Office of Civil Rights (OCR) the federal office that investigates
violations of HIPAA. (10)
Open-record laws state freedom of information laws that grant
public access to records maintained by state agencies. (9)
Opioids synthetic products that are not derived from opium but
have an opium-like effect, acting on the brain to decrease the sensa-
tion of pain. (7)
Other potentially infectious material (OPIM) substances that are
potentially infective, such as visible blood. (8)
Palliative care care for terminally ill patients consisting of comfort
measures and symptom control. (13)
Parens patriae authority occurs when the state takes responsibility
from the parents for the care and custody of minors under the age
of 18. (5)
Parenteral medication route other than the alimentary canal
(oral and rectal) including subcutaneous, intravenous, and
intramuscular routes. (8)
Partnership a legal agreement in which two or more physicians
share the business operation of a medical practice and become
responsible for the actions of the other partners. (4)
Passive euthanasia allowing a patient to die by forgoing treatment. (13)
Patient dumping a slang term for transferring patients from one
hospital to another if the patient is unable to pay for services. (8)
Patient Self-Determination Act (PSDA) requires health care
institutions to provide information to adult patients about advance
directives. (5)
Per diem daily rate. (4)
Permission HIPAA-defined areas in which permission must be grant-
ed in order to use or disclose patient health information (PHI). (10)
Persistent vegetative state (PVS) an irreversible brain condition in
which the patient is in a state of deep unconsciousness. (13)
Personal health record a record of information, often in the patient’s
own words, that is controlled by the patient or the patient’s family. (9)
Placebo group research in which an inactive or alternative type of
treatment is given. (11)
Plaintiff a person or group of people suing another person or group
of people; the person who instigates the lawsuit. (2)
Pleadings formal written statements. (2)
Posthumous after death. (11)
Postmortem after death. (7)
Precedent a ruling of an earlier case that is then applied to subse-
quent cases. (1)
Preempt overrule. (8)
Preferred provider organization (PPO) a managed-care concept
in which the patient must use a medical provider who is under
contract with the insurer for an agreed-upon fee in order to receive
copayment from the insurer. (4)
Pregnancy Discrimination Act mandates that employers must treat
pregnant women as they would any other employee, providing they
can still do the job. (8)
Preimplantation genetic diagnosis (PGD) genetic testing on em-
bryos for genes that cause untreatable or severe diseases. (12)
Preponderance of evidence evidence showing that more likely than
not the incident occurred. (2)
Primary care physician (PCP) HMO-designated physician to manage
and control an enrolled patient’s medical care. (4)
Principle of autonomy right to make decisions about one’s own
life. (1)
Principle of beneficence action of helping others and performing
actions that result in benefit to another person. (1)
Principle of double-effect when an action can have two effects: one
that is morally good or desirable and one that is not. (13)
Principle of justice warns us that equals must be treated equally. (1)
Principle of nonmalfeasance means “First, do no harm.” (1)
Privacy Act of 1974 provides private citizens some control over
information that the federal government collects about them by
limiting the use for unnecessary purposes. (10)
Privacy Rule a requirement that all covered entities under HIPAA
must be in compliance with the privacy, security, and electronic-data
provisions by April 14, 2003. (10)
Privileged communication confidential information that has been
told to a physician (or attorney) by the patient. (5) (9)
Probable cause a reasonable belief that something improper has
occurred. (7)
Probate court, or estate court handles cases involving estates of the
deceased. (2)
Product liability a type of strict liability in which a manufacturer or
seller may be liable for any injury caused by a defective or hazard-
ous product. (6)
Prognosis prediction for the course of a disease. (5)
Prosecutor a person who brings a criminal lawsuit on behalf of the
government. (2)
Prospective payment system the payment amount or reimburse-
ment with a set rate for certain procedures is known in advance. (4)
Protected health information (PHI) any individually identifiable
information that relates to the physical or mental condition or the
provision of health care to an individual. (10)
Protocol a clinical plan of treatment. (9) (14)
Proximate the injury was closely (proximately) related to the de-
fendant’s negligence. (6)
Proxy a person who acts on behalf of another person. (5)
Prudent person rule also called the responsible person standard,
means a health care professional must provide the information that
a prudent, reasonable person would want before making a decision
about treatment or refusal of treatment. (3)
Public duties responsibilities a physician owes to the public. (7)
Public Health Services Act protects patients who are receiving
treatment for drug and alcohol abuse. (9)
Punitive damages also called exemplary damages, monetary award
by a court to a person who has been harmed in an especially mali-
cious and willful way; meant to punish the offender. (6)
Quality assurance gathering and evaluating information about the
services provided as well as the results achieved and comparing this
information with an accepted standard. (1)
Quality of life the physiological status, emotional well-being, func-
tional status, and life in general of an individual. (13)
Randomized study a form of therapeutic research in which the sub-
ject is assigned at random to either a control group or an experimen-
tal treatment group. (11)
Glossary 363
Reciprocity the cooperation of one state in granting a license to
practice medicine to a physician already licensed in another state.
Reciprocity can be applied to other licensed professionals such as
nurses and pharmacists. (3)
Registration indicates that the person whose name is listed on an
official record or register has met certain requirements in that par-
ticular profession. (4)
Regulations rules or laws made by agencies. (2)
Rehabilitation Act prohibits employers from discriminating against
the handicapped. (8)
Res ipsa loquitur Latin phrase meaning “the thing speaks for itself.” (6)
Res judicata Latin phrase meaning “the thing has been decided.” (6)
Respite care providing the family with relief from the responsibili-
ties of patient care. (13)
Respondeat superior Latin phrase meaning “let the master answer”;
means the employer is responsible for the actions of the employee. (3)
Restraining or protective order court order that prohibits an abuser
from coming into contact with the victim. (7)
Retailing the legal act of selling or trading a drug, medicine, pre-
scription, or chemical. (7)
Revocation the act of taking away or recalling, such as taking away
a license to practice medicine. (11)
Revoke take away, as in revoke a license. (3)
Rider additional component to an insurance policy. (6)
Rights-based ethics a natural rights ethical theory that places the
primary emphasis on a person’s individual rights. (1)
Right-to-know laws laws in many states that give employees
access to workplace safety information such as the use of hazardous
or toxic substances. (8)
Rigor mortis stiffness that occurs in a dead body. (13)
Risk management a practice to minimize the incidence of problem
behavior that might result in injury to a patient and liability for the
organization. (3)
Robotics in medicine, the use of machines that have the capacity to
perform human tasks. (14)
Safe haven laws provide safe and legal alternatives to leaving babies
in unsafe places when a parent voluntarily gives up custody. (12)
Sanctions penalties or fines. (10)
Sanctity of life sacredness of human life; all human beings must be
protected. (1)
Scope of practice the activities health care professionals are allowed
to perform as indicated in their licensure, certification, and/or
training. (3)
Settlement the act of determining the outcome of a case outside a
courtroom; settling a case is not an indication of legal wrongdoing. (6)
Sexual harassment unwelcome sexual advances or requests for
sexual favors. (1)
Slander speaking false and malicious words concerning another
person that brings injury to his or her reputation. (2)
Social Security Act federal law that covers all private-sector and
most public-sector employees. (8)
Social utility method of allocation a method of determining the alloca-
tion of organs by giving them to people who will benefit the most. (11)
Sole proprietorship a type of medical practice in which one physi-
cian may employ other physicians. (4)
Solo practice a medical practice in which a physician works alone. (4)
Spontaneous abortion termination of pregnancy that occurs natu-
rally before the fetus is viable. (12)
Standard of care the ordinary skill and care that medical practition-
ers use and that is commonly used by other medical practitioners
in the same locality when caring for patients; what another medical
professional would consider appropriate care in similar circum-
stances. (3)
Stare decisis Latin phrase meaning “let the decision stand.” (2)
State’s preemption when the state privacy laws are stricter than the
privacy standards established by HIPAA. (10)
Statute of limitations the period of time that a patient has to file a
lawsuit. (3)
Statutes laws enacted by state and federal legislatures. (2)
Stem cells master cells in the body that can generate specialized
cells. (11)
Stereotyping negative generalities concerning specific characteris-
tics about a group are applied to an entire population. (8)
Sterilization the process of medically altering reproductive organs
so as to terminate the ability to produce offspring. (12)
Strict liability the concept, in law, that a person is liable for conse-
quences flowing from an activity even if the person is not at fault. (6)
Subpoena court order for a person or documents to appear in
court. (2)
Subpoena duces tecum Latin phrase meaning, “under penalty take
with you”; a court order requiring a person to appear in court and to
bring certain records or other material to a trial or a deposition. (2)
Substitute judgment rule used when decisions must be made for a
person who cannot make his or her wishes known. (13)
Summary judgment judge’s ruling to end a lawsuit without a trial
based on a matter of law presented in pleadings. (2)
Surrogate a person who is replacing another person. (13)
Surrogate mother a woman who agrees to bear a child for an-
other couple. The husband’s sperm is implanted into the woman’s
uterus. (12)
Sympathy pity for someone else. (1)
Telemedicine the use of communications and information technolo-
gies to provide health care services to people at a distance. (10)
Terminally ill one whose death is determined to be inevitable. (13)
Therapeutic research a form of medical research that might directly
benefit the research subject. (11)
Therapeutic sterilization sterilization undertaken to save a moth-
er’s life or protect her health. (12)
Third-party payers a party other than the patient who assumes
responsibility for paying the patient’s bills (e.g., an insurance com-
pany). (4)
Timeliness of documentation all entries into a medical record should
be made as soon as they occur or as soon as possible afterward. (9)
Title VII of the Civil Rights Act prohibits discrimination in employ-
ment based on five criteria: race, color, religion, gender, or national
origin. (8)
Tolerance a respect for those whose opinions, practices, race, reli-
gion, and nationality differ from our own. (1)
Tolling also known as running of the statute of limitations, means
the time has expired. (3)
Tort a civil injury, or wrongful act, committed against another
person or property that results in harm and is compensated in
money damages. (2, 6)
Tort law covers private or civil wrongful acts that result in harm to
another person or that person’s property. (2)
Tort reform a controversial issue in which limits are placed on an
injured person’s ability to sue. (6)
364 Glossary
Tortfeaser a person guilty of committing a tort. (6)
Treatment, payment, and health care operations (TPO) functions
that a health care provider can perform. (10)
Truth in Lending Act (Regulation Z) requires a full written
disclosure about interest rates or finance charges concerning the
payment of any fee that will be collected in more than four install-
ments. (8)
Unborn Victims of Violence Act law that provides legal penalties
for any harm done to an unborn child at federal facilities such as
military bases or in crimes that cross state lines. (12)
Unemployment Compensation provides for temporary weekly
payments for the unemployed worker. (8)
Uniform Anatomical Gift Act a state statute allowing persons 18
years of age or older and of sound mind to make a gift of any or
all body parts for purposes of organ transplantation or medical
research. (5)
Unintentional torts such as negligence, occur when a patient is
injured as a result of a health care professional’s not exercising the
ordinary standard of care. (2)
United Network for Organ Sharing (UNOS) the legal entity in
the United States responsible for allocating organs for transplanta-
tion. (11)
Utilitarianism an ethical theory based on the principle of the great-
est good for the greatest number. (1)
Vesting a point in time, such as after 10 years of employment, when
an employee has the right to receive benefits from a retirement
plan. (8)
Viable in the case of a fetus, ability to survive outside the
uterus. (12)
Viatical settlements allows people with terminal illnesses, such as
AIDS, to obtain money from their life insurance policies by selling
them. (13)
Virtue-based ethics a character trait based on a concern for the
person. (1)
Visual impairment a category of vision deficit encompassing both
those who are blind and those with low vision. (14)
Vital statistics major events or facts from a person’s life, such as live
births, deaths, induced termination of pregnancy, and marriages. (7)
Voice Recognition Technology enables doctors to verbally chart
their patients’ records to allow more immediate and thorough docu-
mentation. (10)
Waive give up a right. (2)
Wireless local area networks (WLANs) a wireless system that is
used by physicians and nurses to access patient information. (10)
Withdrawing life-sustaining treatment discontinuing a treatment
or procedure, such as artificial ventilation, after it has started. (13)
Withholding life-sustaining treatment failing to start a treatment or
procedure such as artificial ventilation. (13)
Worker’s Compensation Act protects workers and their families
from financial problems resulting from employment-related injury,
disease, and death. (8)
Wrongful discharge when an employee believes that the employer
does not have a just-cause or legal reason for firing the employee. (8)
365
A
Abandonment, of patients, 97–99
Abernathy v. Sisters of St. Mary’s, 133
AbioCor, 325
Abortion, 290–295
AMA judicial council opinion
on, 260t
Baby K case, 294
Conscience Clause in, 294–295
deaths from, 293
employee’s right to refuse
participation in, 292–293
ethical issues concerning, 266,
290–293
federal funding withheld, 293
historical progression of cases,
291–292
incompetent persons and, 292
induced, 290
Medicaid and, 291
opposition to, 292
partial birth, 292
Plan B contraceptive pill and, 292
Roe v. Wade, 290–292
spontaneous, 290
Abuse
AMA judicial council
opinion on, 260t
child, 158–160
elder, 160
gathering evidence in cases of, 162
Older Americans Act and, 160
reporting, 159
Safe Haven Laws and, 299
signs of, 161, 161t
spousal, 160–161
substance, 165–168
Accountable Care Organizations
(ACOs), 337
Accreditation, 57–58
Accrediting Bureau of Health
Education Schools
(ABHES), 85
ACO. See Accountable Care
Organizations (ACOs)
Acquired immunodeficiency
syndrome (AIDS)
Americans with Disabilities
Act and, 189
blood exposure to, 100
duty to report, 157, 158
duty to treat, 99
ethical considerations and, 99–100
HIV-infected employees and, 101
improper disclosure and, 222
Pregnancy Discrimination Act
and, 188
privacy and, 230–231
protection for health care
workers, 101–102
Active euthanasia
defined, 311
pros and cons, 312
Addiction, 163
Administrative law, 44
Advance directives, 106–110, 106t
defined, 106
DNR order, 320
durable power of attorney, 108, 109
frequently asked questions, 108
health care proxy, 321
living will, 106–107, 107
Patient Self-Determination Act, 106
substitute judgment rule and, 320
surrogate designation, 320
Uniform Anatomical Gift Act, 108
Affirmative action programs, 186
Affirmative defense, malpractice
suits, 133
Against medical advice (AMA), 99
Age Discrimination in Employment
Act (ADEA), 188
Agent, of power of attorney, 108
Agnew-Watson v. County of
Alameda, 198
AID. See Artificial insemination
donor (AID)
AIDS. See Acquired immunodeficiency
syndrome (AIDS)
AIDS-related complex (ARC), 158
AIH. See Artificial insemination
husband (AIH)
Alabama, Tuskegee syphilis research
study in, 256–257
Alcohol abuse patients, medical
records and, 217
Alleging, criminal act, 258
Allen v. Mansour, 265
Allied health professionals
certification, 84–85
code of ethics, 261
conscience clause and, 86–87
health care professions, 85t–86t
licensure, 84
licensure and certification, 84
negligence lawsuits against, 141–145
registration, 84–85
Allocation, of resources
angiogram, case of, 305–306
God squad and, 263
of organs, 263–266
scarcity ethical challenges, 346
social utility method, for
organs, 264
Alterations, to medical records,
211–213
Altered medical records, 138–139
Alternative dispute resolution
(ADR), 141
Alzheimer’s disease
gene markers for, 271
genetic testing and, 297
patient identification and, 102
physician’s duty to inform patient
and, 103
AMA. See Against medical advice
(AMA); American Medical
Association (AMA)
American Academy of Family
Physicians, 335
American Academy of Neurology, 310
American Academy of Orthopedic
Surgeons
medical errors and, 116
recommendations for HIV-
positive surgeons, 101
American Association of Medical
Assistants (AAMA), 84
code of ethics, 261, 353
American Bar Association, 310
American Civil Liberties Union
(ACLU), 313
American College of Physicians, 83
American College of Surgeons, 83
American Deaf culture, 338–341
American sign language and,
338–340
Americans with Disabilities Act
(ADA) and, 339
cochlear implants and, 340
communicating with, 340–341
interpreters needed for, 340–341
National Association of the Deaf
and, 339
resources for understanding, 341
teachers of, 340
Index
366 Index
American Health Information
Management Association
(AHIMA), 218, 218t
American Hospital Association
(AHA)
The Patient Care Partnership,
105–106
patient rights during
hospitalization, 105–106
truth telling versus maintaining
confidentiality, 103–104
American Medical Association
(AMA)
AMA judicial council opinion
on, 260t
censure and, 258
and ethical standards, 11
and Hippocratic Oath, 258
judicial council opinions
of, 260
position on abortion, 290
principles of medical ethics and,
96, 259
recommendations for
HIV-positive health care
workers, 101
Uniform Determination of Death
Act and, 310
American Medical Technologists
(AMT) association, 85
American Nurses Association
(ANA), code of ethics,
261, 352
American Recovery and
Reinvestment Act,
219–220, 238
American Sign Language (ASL)
American Deaf culture and,
338–340
lip reading and, 340
Americans with Disabilities Act
(ADA) of 1990, 189–190
and accommodations for
disabilities, 189–190
and protection for HIV and AIDS
patients, 100
Americans with Disabilities Act
Amendments Act (ADAAA)
of 2008, 190
Amniocentesis, 296
Amorality, 8
AMT Institute for Education
(AMTIE), 85
Amyotrophic lateral sclerosis (ALS),
case of, 94–95
Analysis, cost-benefit, 9
Anencephaly, 294
Appellate court system, 49
Applied ethics, defined, 2
Aquinas, Thomas, 18
Arbitration, 141
Arbitrator, 141
Arizona, life-support case in, 310
Armstrong v. Flowers Hosp., 188
Arthritis Measurement Scale
(AIMS), 317
Artificial conception, 280–286
artificial insemination, 281–283
ethical considerations in,
280–286
fertility drugs, 285
legal status of offspring, 282
selective reduction or harvesting
embryos, 285–286
surrogate motherhood, 283–285
in-vitro fertilization, 283
Artificial insemination (AI),
281–283
Artificial insemination
donor (AID)
consent for, 282
defined, 281
legal status of offspring
and, 282
Artificial insemination husband
(AIH), 281
Assault, 37–38, 37t
Assisted conception. See Artificial
conception
Assisted suicide
dangers of, 312–313
defined, 311
mercy killing and, 313
Associate practice, 78–79
Assumption of risk, malpractice
suits defense, 134
Autonomy, 181
Autonomy, principle of, 21
Autopsy, 157
B
Baby Doe regulations, 293–294
Baby K case, 294
Baby M case, 284
Bankruptcy
defined, 201
medical care and, 332
Barnes Hospital v. Missouri
Commission on Human
Rights, 142
Battered child syndrome, 159
Battery, 37t, 38
Behavior ethics, 258–259
ethics principles (values) and,
13–14
Bench trial, defined, 37
Bendiburg v. Dempsey, 136
Beneficence, defined, 13
Beneficence, principle of, 21
Benefits regulations. See
Compensation and benefits
(federal regulations)
Beyond a reasonable doubt,
defined, 42
Bias, 179–180
Big Town Nursing Home v.
Newman, 38
Bioethical issues, 261–266
catastrophe readiness, 262
genetic information, 262
medical issues, 262t
organ and tissue donation,
262–263
stem cell research, 262
transplant rationing, 263–266
Bioethicists, 21
Bioethics (biomedical ethics)
and advanced medical
technology, 257
analysis principles, 20–21
defined, 2
reasons to study, 2–6
Biomedical research
clinical trials, 266–267
conflicts of interest, 269
consent in, 267
double-blind tests, 270
effect on debate over treatment,
268–269
ethics of, 266–273
randomized test trials, 270
researcher ethics and, 266
Birth and life issues. See also specific
issues
abortion and, 290–295
assisted (artificial) contraception,
280–286
choices in, 321–325
conscience clause and, 294–295
contraception and, 286
ethical issues, 279–304
fetal development and,
280–281
hereditary disorder, 295–298
Human Genome Project and,
270–271
stem cell research, 271–272
sterilization and, 287–289
wrongful-life suits, 298–299
Birth certificates, 155
Birth control, ethical issues
surrounding, 289
Blanchard-Peale three-step ethics
model, 17–18
Index 367
Blank v. Palo Alto-Stanford Ctr., 81
Blindness
assistive technologies and, 342
Braille and, 341
cataracts and, 343
causes of, 342–343
children and, 342
communication and, 344
corneal transplants and, 342
deaf-blind children and, 342
degrees of, 341–342
diabetes and, 342
Education for all Handicapped
Children Act, 342
glaucoma and, 342–343
legal blindness defined, 342
macular degeneration and, 343
Bloodborne pathogens, 192
BNDD. See Bureau of Narcotics and
Dangerous Drugs (BNDD)
Bonding, insurance, 64
Bondu v. Gurvich, 218
Borrowed servant doctrine, 135
Bouvia v. Superior Court, 311
Braille, Louis, 341
Brain death, 309–310
Harvard Criteria for, 309–310
Brandeis, Louis, 230
Breach of contract, 41
Breach of duty, 127
Brinson v. Axelrod, 160
Buchanan v. Kull, 136
Buckley v. Hospital Corp. of America,
Inc., 188
Burden of proof, 47
Bureau of Narcotics and Dangerous
Drugs (BNDD), 163
Burke, Edmund, 23
Bush, George W., 271
Bush, Jeb, 314
C
CAAHEP. See Commission on
Accreditation of Allied
Health Education Programs
(CAAHEP)
California
artificial insemination
case in, 294
completeness of medical records
case in, 214
liability case in, 142
reporting laws in, 158
stem cell research and, 262
withdrawing life-sustaining
treatment case in, 311
workers’ compensation
case in, 198
Canterbury v. Spence, 113
Cap, on malpractice
compensation, 128
Capitation rate, in HMO, 74
Cardiac death, 308–309
Cardiopulmonary arrest
cardiac death and, 308
Karen Ann Quinlan and, 306
Cardiopulmonary death, 308
Cardiopulmonary resuscitation (CPR)
abandonment and, 99
advance directives and, 320
do not resuscitate (DNR) orders
and, 107
failure to perform lawsuits, 143
Good Samaritan law and, 61
informed consent and, 38
Cardoza, Benjamin, 313
Carson, Benjamin, 324
Case law, 35–36
as category of governmental
rules, 33
example of, 35
list of citations, 354–356
stare decisis origins from, 35
Case studies
Anesha and the Lost Medical
Record, 207–208
Anne and the Runaway Stroller,
330–331
Brian B and the Medical File, 154
David Z. and Amyotrophic
Lateral Sclerosis (ALS),
94–95
Jacob and the Diseased Leg, 31
Janet K. and Epilepsy, 177
Jeanette M. and the Phone Call, 1–2
John F. and the HMO, 122
Latoya and the Physical Therapy
Patient, 53–54
Marguerite M. and the
Angiogram, 305–306
Marion and the Pacemaker, 72
the New Minister, 229
Willowbrook State Hospital, case
of, 279–280
Censure
by AMA, 258
of physician, 258
Centers for Disease Control and
Prevention (CDC)
guidelines for disclosure of
HIV-positive status, 101
infection-control guidelines
and, 333
public health reporting
and, 154
and the Tuskegee Project, 257
Certification, for allied health
professionals, 84
Chain of custody, of evidence in
abuse cases, 162
Charitable organizations, immunity
for, 133
Charting
guidelines for, 212t
notations for corrections,
211–213
Checks and balances,
government, 32
Chemical waste, 170
Child abuse, 158–160
Child Abuse Prevention and
Treatment Act of 1974, 159
Child Abuse Prevention and
Treatment Act of 1987,
293–294
gathering evidence, 162
Mary Ellen McCormack case of,
158
Minnesota case of, 159
probable cause to
investigate, 159
signs of, 161, 161t
Child Abuse Prevention and
Treatment Act of 1974, 159
Child Abuse Prevention and
Treatment Act of 1987, 293
Child Protection Group v.
Cline, 217
Children’s Health Initiative Program
(CHIP), 337
Chromosomes, 270
Circuit courts. See Court
of appeals
Civil (private) law, 36–42
and class action lawsuits, 42
components, 36
contract law, 36, 40–42
defined, 36
preponderance of evidence
required in, 37
tort law, 36, 37–40
Civil liability cases, 136
Civil Rights Act of 1964, 185–187
Title VII of, 185–187
Civil Rights Act of 1964, Title VII
of, sexual harassment
definition, 16
Civil Rights Act of 1991, 187
Civil trial, procedure for, 47
Claims, against estates, 202
Claims-made insurance, 140
Class action lawsuit, 42
Clearinghouse, for HIPAA
transactions, 238
368 Index
Cline v. Lund, 63
Clinical Laboratory Improvement
Act (CLIA) of 1988,
193–194, 193t
Clinton, Bill, 257
Cloning, 257, 261
Closing arguments, 47
Codes of ethics, 351–353
Coding up, 38–39
Cognitive impairment
abortion and, 292
eugenic sterilization and,
286, 288
hereditary disorders and, 296t
PKU testing and, 297
sensitivity term, 286
Willowbrook State Hospital
case, 279
Collection agency, using, 200–201
Comatose state
defined, 307
Terri Schiavo case and, 314
Commission on Accreditation of
Allied Health Education
Programs (CAAHEP),
57–58, 85
Common law, 35–36
Communicable diseases, reporting
cases of, 157–158
Communication, as malpractice
prevention and, 147
Comparable worth, 16–17
Comparative negligence,
malpractice suit defense,
134–135
Compassion, in workplace, 15
Compensation and benefits (federal
regulations), 195–199
Employee Retirement Income
Security Act, 198
Equal Pay Act, 197
Fair Labor Standards
Act (FLSA), 196
Family and Medical Leave Act
(FMLA), 198–199
Federal Insurance Contribution
Act, 197
list of laws, 196t
Social Security Act, 195–196
unemployment
compensation, 197
Workers’ Compensation Act,
197–198
Compensatory damages, 128
Competency, of parties in valid
contracts, 40
Compounding, of medications,
defined, 164–165
Comprehensive Omnibus Budget
Reconciliation Act (COBRA),
97, 194
Conception, wrongful, 299
Confidentiality. See also Health
Insurance Portability and
Accountability Act (HIPAA)
in AAMA code of ethics, 353
AIDS and, 158, 230–231
AMA judicial council opinion
on, 260t
case of, 229
computerized records and, 220
Employee Assistance Programs
and, 170
medical records and, 215–217
patient, 228–253
patient rights and, 59–60, 105
physician duty to respect, 102
right to privacy, 230
transmitting records and, 216t
Conflicts of interest, 269
Conjoined twins, 324–325
Connecticut
contraception ban and, 286
Safe Haven law and, 299
Conscience clause, 86–87
Consent, 111–115
for artificial insemination donor, 282
biomedical research and, 267
exceptions to, 115
under HIPAA, 236
implied, 114–115
informed, 111–114, 267
refusal to grant, 115
for sterilization, 287–288
Consolidated Omnibus Budget
Reconciliation Act
(COBRA), 194
patient dumping and, 199
Constitutional law, 33–34
Consumer Protection Act, 200
Consumer protection and collection
practices, 199–202, 199t
claims against estates, 202
Emergency Medical Treatment
and Active Labor Act, 199
Equal Credit Opportunity Act,
199–200
Fair Credit Reporting Act, 199
Fair Debt Collection Practices Act,
200–201
Federal Wage Garnishment Law,
201–202
guidelines for collection, 201t
statute of limitations, 202
Truth in Lending Act, 200
Continuing education (CE), 85
Contraception, 286
Conscience Clause in, 294–295
Contract law, 40–42
as addressing a breach, 40
breach of contracts in, 41
competent parties in, 40
consideration in, 40
defined, 36
expressed contracts, 40–41
implied contracts, 41
oral contracts, 40
termination of contracts, 41–42
types of contracts in, 40–41
Contracts, 40–42
breach of, 41
expressed, 40–41
implied, 41
termination of, 41
types of, 40–41
Contributory negligence,
malpractice suit defense, 134
Control group
defined, 267
in Tuskegee Project, 257
Controlled substances, 163–168
and addiction, 163
Controlled Substances Act of
1970, 163
prescriptions for, 164–165
schedules for, 164, 164t
Cooley’s anemia, hereditary
disorder, 296t
Copayment, in PPO, 74
Coroner
cases needed for, 156–157, 156t
defined, 156
Corporation, professional, 79–80
Corrections, to medical records,
211–213
Cost/benefit analysis, 9
Council on Ethical and Judicial
Affairs (AMA)
composition, 260
opinions, 260t
Court
improper disclosure, 222
subpoena duces tecum, 222–223
use of medical records in, 222–223
Court of appeals, 45
Court systems, 44–46
appellate, 49
estate, 45
federal, 44–45
probate, 45
state, 45
structure of federal, 33, 44–45
testifying in, 48
types of courts, 44–45
Index 369
Covered entities, under HIPAA,
238–239, 239t
Covered transactions, 238–239
Credibility gap, 214
Credibility of medical records
credibility gap, 214
defined, 214
Credit Card Accountability and
Disclosure Act of 2009, 199
Creditor, 201
Criminal case, defined, 42
Criminal law, 42–43
Cruzan, Nancy, 313–314
Cruzan v. Director, Missouri Dept of
Health, 314
Cultural issues, 179–181
Curative care, 319
Cystic fibrosis, 286
hereditary disorder, 296t
D
Damages, 128–129
cap, 128
compensatory, 128
nominal, 129
punitive, 129
Darling v. Charleston Community
Memorial Hospital, 62–63
Data, public health, 154
Davis v. Davis, 283
DEA. See Drug Enforcement
Administration (DEA)
Death and dying, 305–329
active versus passive euthanasia,
311–312
advance directives, 320
advance directives and, 320
assisted suicide, argument of,
312–313
brain-oriented death, 309–310
cardiac death, 308
choices in, 321–325
conjoined twins, 324–325
criteria for death, 307–308
death certificates, 155–157
direct versus indirect killing,
314–315
health care proxy and, 321
hospice care, 318
Karen Ann Quinlan case, 306–307
legal definition of death, 306
mechanical heart recipient, 325
ordinary versus extraordinary
means, 315
pain relief and, 317
palliative care, 319
process of, 306
quality-of-life issues, 316–317
right to die legislation, 315–316
right to refuse treatment, 315–316
stages of dying, 316, 316t
suicide, 321–324
Uniform Determination of Death
Act, 310
withdrawing versus withholding
treatment, 311
Debtors, 201
Defamation of character, 37t, 38
libel, 38
slander, 38
Defendant, defined, 45
Defensive medicine
costs of, 273
defined, 140
practicing, 7, 140–141
Deidentifying, 240
Delegation, 87–88
DeMay v. Roberts, 104
Denial defense, malpractice suits,
133–134
Dental assistant
negligence lawsuit against, 142
occupation of, 85t
Deontological theory, 9
Department of Children and
Families (DCF), Safe Haven
laws and, 299
Department of Clinical Bioethics,
269
Department of Health and Human
Services
and administrative law, 44
institutional review boards (IRBs)
and, 267
Office of Inspector General and,
131
“reasonable safeguards” for
patient privacy, 245
rules for HMOs, 75
substance abuse statistics, 169
Deposition, 45–46
Dereliction, of duty, 127
Diagnostic related groups (DRGs),
75
Direct cause, of negligence,
127–128
Direct killing versus indirect killing,
314–315
Disability
accommodations for, 189–191
Americans with Disabilities Acts,
189–190
Baby Doe regulations and,
293–294
Baby K and, 294
blindness and, 341–344
Child Abuse Prevention and
Treatment Act of 1987,
293–294
the Deaf and, 338–341
expanded definition, 190
Individuals with Disabilities
Education Act (IDEA),
190–191
Rehabilitations Act, 189
undue hardship and, 189
vision disorders and, 343
visual impairment and,
341–344
Disclosure
improper, 222
medical records and, 222–223
permitted incidental, 241
state open-record laws and, 217
Discovery, 45
Discovery rule, 60
Discrimination
in employment, 185–187
employment laws against, 186t
of handicapped, 189
Rehabilitation Act and, 189
Title VII of the Civil Rights Act
and, 185–187
in workplace, 178
“Diseased Leg” case, 31
Dispensing, of drugs, 165
District court, 45
Doctrine of professional
discretion, 215
Documentation
completeness of, 213
malpractice prevention and,
147–148
timeliness of, 213
Doe v. Borough of Barrington, 100
Donor siblings, conceiving, 297
Do not resuscitate (DNR)
advance directives and 320, 341
living wills and, 107
“Donut hole” costs, 76
Double-blind test, 270
Double-effect principle, 315
Douglas, William O., 286
Downs v. Sawtelle, 288
Down syndrome
Baby Doe and, 293–294
genetic testing and, 296
hereditary disorder, 296t
wrongful conception/wrongful
pregnancy and, 299
Drug abuse treatment, medical
records and, 217
Drug Enforcement Administration
(DEA), 163
370 Index
Drug-Free Workplace Act of
1988, 195
Drugs
controlled, 163–165
fertility, 285
illegal sale of, 137
Duchenne muscular dystrophy
genetic testing and, 297
hereditary disorder, 296t
Duenwald, Jay, 271
Due process, in workplace, 15–16
Durable power of attorney
agent, 108
defined, 108
proxy, 108
sample, 109
Duty
dereliction of, 127
negligence and, 125–126
in physician–patient
relationship, 125
Duty-based ethics, 10, 12t
E
EIN. See Employer Identification
Number (EIN)
Elder abuse, 160
Electroencephalogram (EEG)
defined, 307
Harvard Criteria and, 310
Electronic health records (EHR)
American Recovery and
Reinvestment Act, 219–220
benefits of, 219
confidentiality obligations, 220
defined, 208
EHR and EMR distinctions,
219, 237
encryptions, 219
firewalls, 219
Health Information Technology
for Economic and Clinical
Health (HITECH) Act,
236–237
meaningful use requirement,
219–220
Medicare Incentive Program
requirement, 237
Electronic medical records (EMR)
defined, 208
EMR and EHR distinctions,
219, 237
Electronic protected health
information (EPHI)
disclosure “need-to-know”
criterion, 233
and HIPAA security rule, 233
Emanuel, Ezekiel, 269
Embezzlement
bonding and, 64
defined, 39
Embryo
harvesting, selective, 285–286
harvesting of stem cells and, 272
stage of development, 280
in vitro fertilization and, 283
Emergencies (medical)
duties during, 97
informed consent and, 113
Emergency medical technicians
(EMT/paramedic)
abandonment and, 99
civil immunity finding, 143
Good Samaritan law and, 61
occupation of, 85t
Emergency Medical Treatment and
Active Labor Act (EMTALA)
Baby K and, 294
“patient dumping” and,
97, 195, 199
Emotions versus ethics, 20
Empathy, defined, 13
Empathy, in workplace, 15
Employee Assistance Program
(EAP), 168–169
warning signs for, 169t
Employee health and safety (federal
regulations)
Clinical Laboratory Improvement
Act, 193–194
Consolidated Omnibus Budget
Reconciliation Act, 194–195
Drug-Free Workplace Act, 195
Health Maintenance Organization
Act, 194
Occupational Safety and Health
Act, 192–193
Employee Retirement Income
Security Act (ERISA) of 1974,
185, 198
Employees
abortion, right to refuse
participation in, 266,
292–293
employer’s duty to, 64
protection for, 168–171
respondeat superior and, 62–63
safety, 192–195
scope of practice for, 63–64
under Title VII of Civil Rights
Act, 186–187
”troubled,” 169
Employer Identification Number
(EIN), 239–240
Employer Identifier Standard,
239–240
Employers
duty to employees, 64
liability and, 139
Title VII of Civil Rights Act
and, 187
Employment-at-will doctrine, 185
Employment discrimination,
185–187
existing laws, 186t
EMR. See Electronic medical
records (EMR)
EMTALA. See Emergency Medical
Treatment and Active Labor
Act (EMTALA)
Encryptions, 219
Endorsement, physician licensure
and, 56
Environment, health care, protection
of, 170–171
Environmental Protection Agency
(EPA), 271
EPA. See Environmental Protection
Agency (EPA)
Epilepsy, workplace ethics case, 177
Equal Credit Opportunity Act of
1975, 199–200
Equal employment opportunity
(federal regulations)
Age Discrimination in
Employment Act, 188
Americans with Disabilities Act,
189–190
Civil Rights Act of 1991, 187
employment at-will concept, 185
Equal Employment Opportunity
Act, 187
existing laws, 186t
National Labor Relations Act, 191
Pregnancy Discrimination Act,
187–188
Rehabilitation Act, 189
Title VII of Civil Rights Act,
185–187
Equal Employment Opportunity Act
(EEOA) of 1972, 186
Equal Employment Opportunity
Commission (EEOC)
enforcement of Title VII of Civil
Rights Act, 186
job interview guidelines, 183,
183t–184t
Equal Pay Act of 1963, 197
Erickson v. Dilgard, 115
ERISA. See Employee Retirement
Income Security Act (ERISA)
of 1974
Estate court, 45
Estate of Berthiaume v. Pratt, 39
Index 371
Estates, claims against, 202
Ethical dilemmas
conflicts between beliefs and
health care roles, 72
conjoined twins, 324–325
cost of biotech medical care
and, 261
“doing the right thing,” 300
medical assistants and, 261
organ donation and, 264
personal choices and, 266, 300
randomized test trials and, 270
stem cell research and, 271
Ethics, 8–17
abortion and, 266, 290–293
AIDS and, 100
allied health professionals codes
of, 261
applied in medicine, 256–278
artificial conception and, 280–286
of biomedical research, 266–273
birth and life issues, 279–304
birth control and, 289
Blanchard-Peale three-step model
of, 17–18
codes of, 351–353
committees, 21–22
common sense approach
to, 17, 17t
defined, 8
dilemmas in, 4–6
“doing the right thing,” 300
duty-based, 10, 12t
early history, 258
versus emotions, 20
of fee splitting, 81
genetic testing and, 297–298
Human Genome Project, 270–271
information technology and,
247–249
interpersonal, 14–17
justice-based, 11, 12t
Lo three-step clinical model, 19
managed care and, 76–77
medical, 8
medical record informatics and,
247–249
models for analysis, 17–19
personal choice and, 266, 300
physicians code of, 259–260
principles or values driving
behavior, 13–14
reasons to study, 2–6
versus religious beliefs, 20
rights-based, 10, 12t
seven-step decision model of, 18
standards and behavior, 258–259
sterilization and, 287–289
surrogate motherhood and,
283–285
theories of, 9–12, 12t
utilitarianism and, 9–10, 12t
virtue-based, 12, 12t
Ethics, applied, 2
Ethics committees, 21–22
Ethnic disparities in health care, 335
Ethnocentrism, 180
Etiquette, medical, 23
Eugenic (involuntary)
sterilization, 288
Eugenics, 288
Euthanasia
active versus passive, 311–312
AMA judicial council opinion
on, 260t
arguments against, 312
arguments in favor of, 312
Baby Doe regulations and,
293–294
defined, 266
Evidence
chain of custody for, 162
Federal Rules of Evidence, 138
gathering in abuse cases, 162
preponderance of, 37, 127
Examination for licensure, 55
Exclusive provider organization
(EPO), 74
Expert witness, 48
Expired, legal definition of
death, 306
Expressed consent. See Informed
consent
Expressed contract, 40–41
Expulsion
by AMA Board of Examiners, 258
of physician, from American
Medical Association, 258
Extraordinary versus ordinary
treatments, 315
F
Facial recognition technology,
248–249
Fair Credit Reporting Act of
1971, 199
Fair Debt Collection Practices Act of
1978, 200–201
bankruptcy and, 201
collection agency, 200
Fair Labor Standards Act (FLSA) of
1938, 196
Fairness, in workplace, 15
Fair v. St. Joseph’s Hospital, 198
False claims, under federal
statutes, 132t
False imprisonment, 37t, 38
Falsification, of medical
records, 213
Family and Medical Leave
Act (FMLA) of 1994,
198–199
FDA. See Food and Drug
Administration (FDA)
Feasance, 125
Federal assistance (health care)
programs, 74–76
diagnostic related groups, 75
Medicaid, 75–76
Medicare, 74–76
Federal Communications
Commission (FCC),
collection agency guidelines
and, 200, 201t
Federal court system, 44–45
Federal Emergency Treatment and
Labor Act of 1986, 337
Federal Insurance Contribution Act
(FICA) of 1935, 197
Federal Licensing Examination
(FLEX), 55
Federal Patient Self-Determination
Act of 1991, 320
Federal regulations
compensation and benefits,
195–199
consumer protection and
collection practices,
199–202, 199t
employee health and safety,
192–195
medical professional employment
and, 184–191
Federal Rules of Evidence, 138
Federal Wage Garnishment Law of
1970, 201–202
Federation of State Medical Boards,
recommendations for HIV-
positive health care
workers, 101
Fee-for-service (FFS) basis, 74
Fee splitting
AMA judicial council opinion
on, 260t
ethics of, 81
Fellow of American College of
Physicians (FACP), 83
Fellow of American College of
Surgeons (FACS), 83
Felony
case process, 43
defined, 42
Fertility drugs, 285
Fetal development, 280–281
372 Index
Fetus
gestational stage of development,
280–281
legal standing of, 292
as person, 292
Fidelity, defined, 13
Fifth Amendment and due process, 15
Firewalls, 219
First, Do No Harm, 331
Fixed-payment plan, defined, 73
Fletcher, Joseph, 103
FLEX. See Federal Licensing
Examination (FLEX)
Florida
liability case in, 143
missing medical records case, 218
Food, Drug, and Cosmetic Act of
1938, 163
Food and Drug Administration
(FDA), 163–164
clinical laboratory standards
and, 193
embryonic research and, 271
guidelines for drug disposal, 170
whistleblowing and, 272
Forensic medicine, 162–163
Forensic pathologist, 162–163
Fourteenth Amendment and due
process, 15
Franchise, 81
Franchisee, 81
Fraud
“coding up” and, 38–39
defined, 39
documentation and, 214
embezzlement and, 39
health care and, 333–334
as intentional tort, 37t, 38–39
malpractice and, 129–131
Medicaid and, 39
Medicare and, 129–130, 242
Medicare/Medicaid and, 38–39
Fraudulent practices, 39
Free Appropriate Public Education
(FAPE), 190–191
Fremgen, Amy, 341
Functional Living Index: Cancer
(FLIC), 317
G
Garcia v. Elf Atochem, 187
Garnishment, 201–202
gate, 142
Gatekeeper
in managed care, 73
primary care provider as, 194
Gender harassment, 16
Gene markers, 271
Gene therapy, AMA judicial council
opinion on, 260t
Genetics
conceiving donor siblings, 297
counseling/testing and, 295–296
embryo harvesting, 286
hereditary disorders, 296t
prenatal testing, 296
testing of newborns, 297
Genetic testing
Alzheimer’s disease and, 297
Down syndrome and, 296
Duchenne muscular dystrophy
and, 297
ethical questions regarding,
297–298
ethics and, 297–298
Huntington chorea and, 296
Huntington disease and, 297
of newborns, 297
Phenylketonuria (PKU) and, 296
prenatal, 296
Retinoblastoma and, 296
Tay-Sachs disease and, 296
Gentleness, defined, 13
“Germ warfare,” 333
Gestational period, 281
Ghost surgery, AMA judicial council
opinion on, 260t
Goff v. Doctors General Hospital, 62
Goforth v. Porter Med. Assoc., Inc., 289
Gonzalez v. Carhart, 292
Good Samaritan laws, 59–60
Duty to Aid the Endangered
Act, 61
scope of immunity, 61
Grand jury, 45
Grijalva v. Shalala, 75
Griswold v. Connecticut, 286
Grodin, Michael, 324–325
Group practice, 79
Grubbs v. Medical Facilities of America,
Inc., 189
Guardian ad litem
abortions and, 292
defined, 60
right to refuse treatment and,
315–316
Guilmet v. Campbell, 137
Gunshot wounds, reporting, 162
H
Habituation, 163
Hackett, Thomas, 103
Hardship, undue, 189
Harris v. McRae, 291
Harvard Criteria for a Definition of
Irreversible Coma, 309–310
Harvard Medical School, 309
Harvesting
embryo, 285–286
organ, defined, 264
Harvet v. Unity Medical Ctr., 183
Hayes v. Shelby Memorial Hosp., 188
Hazard Communication Standard
(HCS), 193
Health care
cost of, 272–273, 331–332
ethics, 338
ethnic disparities, 335
future trends, 330–350
historical laws and programs,
336–337
medical errors and, 331
new advances and improvement,
335–336
patient rights and, 335
prevention and, 335
problems in current system,
331–335
rationing, 273
and recommended screenings, 335t
reforms, 336–338
robotics and, 336
screenings and, 335
trends, 336–338
Health care consumer, role of, 116
Health care environment
exclusive provider organizations
(EPOs), 74
federal assistance programs,
74–76
Health Care Quality
Improvement Act, 77
health maintenance organizations
(HMOs), 73, 74
managed care, 73–74
managed care organizations
(MCOs), 73–74
organization of, 73–77
preferred provider organizations
(PPOs), 74
Healthcare Integrity and Protection
Data Bank (HIPDB), 236
Health care plan, under HIPAA, 238
Health Care Privacy and Security
certification, 249
Health care professions, 85t–86t
Health care providers, lack of, 332
Health care proxy, 321
Health Care Quality Improvement
Act (HCQIA) of 1986, 77
Health Information Technology
for Economic and Clinical
Health (HITECH) Act,
236–237
Index 373
Health Insurance Portability and
Accountability Act
(HIPAA)
affected parties, 238–239
compliance with, 234–235
confidentiality and, 105,
228–253
covered entities, 234
covered transactions, 238–239
denial of request for
privacy, 239
Enforcement Rule, 233
five titles, 232
identifiers for health care
providers, 239–240
misconceptions about, 245
National Practitioner Data Bank
(NPDB), 236
Notice of Privacy Practices, 237
obligations to patient
under, 240
overcautious application,
244–245
patient consent to release of
records, 235–236
patient rights under, 238t
patient rights under privacy
standards, 242, 242t
penalties for noncompliance,
241–242
permissions, 243t
permitted incidental disclosures,
241, 241t
precautions relating to, 246t
privacy and, 179, 232–234
Privacy Rule, 233–234
Privacy Rule clarification, 241
problems relating to
implementation of,
244–245
and protected health
information, 233
recommendations for
implementing, 245–246
release of information and
consent, 234–236
release of medical records
under, 217
rules relating to
research, 242
Security Rule, 233
state law requirements,
234–235
state’s preemption, 239
Title II, 232–234
Transactions and Code Sets
Rule, 233
Unique Identifiers Rule, 233
Health literacy, 338
Health Maintenance Organization
(HMO) Act of 1973, 194
Health maintenance organizations
(HMOs)
capitation rate, 74
case of, 122
described, 74
emphasis, 73
as a group practice, 79
and physicians’ charges, 96
Health record. See also Medical
records
defined, 208
internet issues and, 237,
246–247
mental, 217
personal, 220–221
privacy protection strategies,
246–247
Heller v. Ambach, 143
Hepatitis A vaccine, 157
Hepatitis B vaccine, 192
Hereditary disorders, 296t
Hickman v. Sexton Dental Clinic, 142
H. influenzae type B vaccine
(HiB), 157
HIPAA-defined permissions,
242, 243t
HIPDB. See Healthcare Integrity
and Protection Data Bank
(HIPDB)
Hippocrates, 258
Hippocratic Oath, 229, 258
Hiring practices, 182–184
recommendations for, 182t
HIV. See Human immunodeficiency
virus (HIV)
HIV-infected employees, restrictions
on, 101
H.L. v. Matheson, 291
HMO. See Health maintenance
organizations (HMOs)
Honesty, in workplace, 15
Honor, in AAMA code of
ethics, 353
Hospice, model of care, 318
Human dignity, in AAMA code of
ethics, 353
Human genome, 270
Human Genome Project, 270–271
Human immunodeficiency virus
(HIV)
AMA judicial council opinion on,
260t
disclosure, by health care
workers, 158
in donor tissue, 158
duty to report, 158
infectious waste disposal, 171
physician duty to treat, 99
Humility, defined, 13
Huntington chorea
genetic testing and, 296
hereditary disorder, 296t
Huntington disease, 286
genetic testing and, 297
Hurlock v. Park Lane Med. Ctr., 213
Hyde, Henry, 291
Hyde Amendment, 291
Hypothermia, 308
I
Illinois, retention of records
case, 218
Immunity, for charitable
organizations, 133
Implied consent, 114–115
Implied contract, 41
Improper disclosure, 222
Incident report, 65–66
Incompetent patients, 99
Incompetent persons, abortion
and, 292
Independent practice association
(IPA), 79
Indictment, defined, 45
Indigent
decline of free health care to, 332
defined, 10
duty to treat, 97
Medicaid for, 75
Indirect killing versus direct killing,
314–315
Individuals with Disabilities
Education Act (IDEA),
190–191
Induced abortion, 290
Infectious materials, 192t
Infectious waste, 171
Informatics, 247–249
Information technology
(informatics), 247–249
Informed consent, 111–114, 267
Injury, fraud cases and, 333
Inquest, 156
Institutional review board
(IRB), 267
Insurance
claims-made, 140
fixed-payment plan, 73
liability, 139–140
malpractice, 140–141
occurrence, 140
private, 73
third-party payers, 73
374 Index
Integrity, in workplace, 14
Intentional torts, 37–39
assault, 37–38, 37t
battery, 37t, 38
defamation of character, 37t, 38
false imprisonment, 37t, 38
fraud, 37t, 38–39
invasion of privacy, 37t, 39
Interpersonal ethics, 14–17
Interview questions, 183, 183t–184t
Invasion of privacy, 37t, 39
Involuntary sterilization, 288
Irreversible coma, 309
J
Jackovach v. A.L. Yocum, Jr., 115
James v. Jacobson, 282
Jeczalik v. Valley Hospital, 87
Jenkins v. Bogalusa Community
Medical Center, 134
Jespersen, Mackayala, 308
The Joint Commission on
Accreditation of Healthcare
Organizations (The Joint
Commission), 57
accreditation of health care
education programs and, 84
medical record standards
and, 210
timeless in charting
guidelines, 213
Journal of the American Medical
Association, 317
Jurisdiction, defined, 44
Just cause, employment discharge
and, 185
Justice, defined, 13
Justice, principle of, 21
Justice-based ethics, 11, 12t
K
Keene v. Brigham & Women’s Hosp.,
Inc., 221
Keller, Helen, 2, 341
Kern v. Gulf Coast Nursing Home, Inc.,
143
Kobler, William, 245
Korman v. Mallin, 112
Kübler-Ross, Elisabeth, 316
L
Laboratory technician
negligence lawsuits
against, 142
occupation of, 85t
Lambert v. Bessey, 35
Landau v. Medical Board of
California, 142
Landeros v. Flood, 159
Law of agency, 138
Laws
administrative, 44
case (common), 35–36
civil (private), 36–42
class action lawsuit, 42
classification of, 36–44
common (case), 35–36
constitutional, 33–34
contract, 40–42
criminal, 42
defined, 6
Good Samaritan laws, 60–61
medical, 6–8
public law designation, 34
reasons to study, 2–6
regulatory, 34–35
right-to-know, 192
sources of, 33–36
state open-record, 217
statutory, 34–35
tort, 37–40
Legal system, 31–33
as branch of government, 32
classification of laws in, 36–44
federal and state court systems in,
31–32, 44–45
federal court structure in, 33
separation of powers in,
32–33, 33
sources of law for, 33–36
trial process, 45–49
Liability, professional, 136–141
of allied health professionals,
141–145
altered medical records, 138–139
alternative dispute
resolution, 141
civil liability cases and, 136
illegal sale of drugs, 137
law of agency, 138
liability insurance and, 139–140
malpractice insurance and,
140–141
physical conditions of premises,
136–137
promise to cure, 137
responsible party for, 139
Liability insurance
claims-made, 140
occurrence, 140
Libby Zion case, 178
Libel, 38. See also Defamation of
character
Licensure
accreditation and, 57–58
allied health professionals and, 84
defined, 84
endorsement in, 56
examination for, 55
for physicians, 55–58
practicing without a license
and, 57
reciprocity and, 56
registration in, 56
revocation and suspension, 56–57,
258–259
Life issues of the elderly, 344–346
Alzheimer disease, 345–346
dementia, 345
hemophilia, 346
Huntington disease, 346
loss of spouse, 345
memory loss, 344–345
Parkinson disease, 346
Life-support systems, 306
Litigation
case study, 31
defined, 45
trial process, 45–49
Litigious society, 3, 122
Living will, 106–107
do not resuscitate (DNR) orders
and, 107
effective conditions, 107
sample, 107
Lo, Bernard, 19
In loco parentis, 110
Loss, of medical records, 221
Lo three-step clinical model for
decision making, 19
Lovelace Medical Ctr. v. Mendez, 299
Love v. Heritage House Convalescent
Center, 197
Loyalty, in workplace, 15
M
Maher v. Roe, 291
Malfeasance, 125
Malpractice, 121–152
communication as
prevention, 147
defined, 39–40, 123
documentation as prevention,
147–148
malfeasance classification, 125
misfeasance classification, 125
negligence, 123–129
nonfeasance
classification, 125
not guilty verdicts, 48
Office of Inspector General and,
131–132
prevention, 145–148
tort reform, 145
Index 375
Malpractice insurance
cost of, 140
defensive medicine and, 140
licensed medical professionals
and, 140
Malpractice suits
affirmative defense to, 133
assumption of risk defense to, 134
borrowed servant doctrine, 135
comparative negligence defense
to, 134–135
contributory negligence defense
to, 134
denial defense to, 133–134
res judicata decision in, 136
statute of limitations and,
135–136
Managed care, 73–74
ethical considerations in, 76–77
Managed care organizations
(MCOs)
ethical considerations, 76–77
operation, 73–74
Mandel v. Doe, 144
Massachusetts
liability case in, 143
religious beliefs case in, 181
stem cell legislation in, 271
Matter of Baby K, 294
McCormack, Mary Ellen, child
abuse case of, 158
McCullough, Dennis, 319
McLaughlin v. Cooke, 289
MCO. See Managed care
organizations (MCOs)
Mechanical heart recipient, 325
Mediation, 141
Medicaid
abortion and, 291
advance directives and, 320
confidentiality and, 229
as federal assistance program,
75–76
fraud and, 38–39, 129–130,
241–242
fraud cases and medical
records, 214
managed care ethics and, 76–77
medically necessary abortion
and, 293
Office of Inspector General and,
131–132
organ transplants and, 265–266
Rehabilitation Act and, 189
sterilization and, 287
Title VII of the Civil Rights Act
and, 186
viatical settlements and, 319
Against medical advice (AMA),
hospitalization discharge, 99
Medical assistant
negligence lawsuit against, 142
occupation of, 85t
Medical errors
causes of, 346
death rate from, 331
First, do no harm principle, 331
Medicare/Medicaid
reimbursement and, 331
reporting of, 331
Medical ethics, 8
Medical etiquette, 23
Medical examiner, 157
Medical informatics, 248
Medical law, 6–8
Medical Patients Rights Act,
confidentiality and, 59, 105
Medical practice
associate practice, 78–79
group, 79
group, as HMO, 79
group, as independent practice
association (IPA), 79
partnership, 78
professional corporations, 79–80
sole proprietorship, 78
solo, 78
types of, 77–81, 80t
Medical practice acts, 7–8, 54–55
Medical records, 207–227
alcohol and drug abuse patients
and, 217
altered, 138–139
birth certificates, 155
case of lost, 207
case of reporting public health
issues, 154
completeness of entries in, 213–214
confidentiality and, 215–217
contents of, 210–214
corrections and alterations to,
211–213
credibility of, 214
death certificates, 155–157
defined, 208
electronic, 221
example of, 210t
falsification of, 213
guidelines for charting, 212t
improper disclosure of, 222
legal standing of, 208, 209
loss of, 221
ownership of, 215
Privacy Act and, 231
purpose of, 208–209
release of information, 215–217
reporting and disclosure
requirements, 222–223
retention and storage of, 217–218
state open-record laws, 217
storage of, 208
subpoena duces tecum, 222–223
timeliness of documentation, 213
time periods for retaining, 218t
use of in court, 222–223
Medical specialties, 82t–83t
Medical specialty boards
American Board of Medical
Specialists, 81
American College of Physicians, 83
American College of Surgeons, 83
medical specialties, 82–83
physician abbreviations and, 83t
Medical waste, 170–171
Medicare
accreditation and, 57
advance directives and, 320
card, example of, 75
confidentiality and, 229
diagnostic related groups and, 75
as federal assistance program,
74–75
fee splitting and ethics, 81
fraud and, 38–39, 129–130,
241–242
fraud cases and medical
records, 214
and HIPAA noncompliance,
241–242
managed care ethics and, 76–77
medical record requirements
and, 208
Office of Inspector General and,
131–132
organ transplants and, 265
rationing of health care and, 75
Rehabilitation Act and, 189
Social Security Act and, 196
Title VII of the Civil Rights Act
and, 186
as utilitarian ethics, 10
Medicare Act, as ethical
utilitarianism, 9–10
Medicare-Medicaid Antifraud and
Abuse Amendments, 39
Mendel, Gregor, 295
Mengele, Josef, 259
Mentally challenged persons. See
Cognitive impairment
Mercy killing. See Euthanasia
Michigan
Baby M case, 284
organ transplant case in, 265
promise to cure case and, 137
376 Index
Microfiche, 218
Milliman Medical Index, 332
Minimum necessary standard,
229–230, 240
Minnesota
child abuse case in, 159
reporting laws in, 158
wrongful discharge suit in, 183
Minors
abortion and, 291
competencies of, 110t
rights of, 110
sterilization (voluntary) of, 287
Misdemeanor
case process, 43
defined, 42
Misfeasance, 125
Mississippi, liability case in, 143
Missouri
completeness of medical records
case, 213
liability case in, 142
Modified Rights of the Terminally Ill
Act, 107
Mohr v. Williams, 114
Moon Lake Convalescent Center
v. Margolis, 143
Morality, 8
Morbidity rate, 154
Morena v. South Hills Health
Systems, 143
“Morning after” pill, Plan ”B”
contraceptive pill, 292
Morrison v. MacNamara, 39
Mortality rate, 154
MRSA (Methicillin-resistant
Staphylococcus
Aureus), 333
Municipal ordinances, 35
Murray v. Vandevander, 287
N
National Association of the Deaf,
339
National Board of Medical
Examiners (NBME), 55
National Childhood Vaccine Injury
Act of 1986, 157
National Institute of Health Clinical
Center, 269
National Labor Relations Act of
1935, 191
National Labor Relations Board
(NLRB), 191
National Organ Transplant Law of
1984, 265
National Practitioner Data Bank
(NPDB), 77
NBME. See National Board of
Medical Examiners (NBME)
Needlesticks
and HIV patients, 100
on-the-job protections, 101
Neglect of duty, 127
Negligence, 39, 123–129
comparative, malpractice suit
defense, 134–135
contributory, malpractice suit
defense, 134
damages, 128–129
dental assistant lawsuit, 142
dereliction or breach of duty, 127,
142
direct or proximate cause,
127–128
duty and, 125–126
as form of malpractice, 123
four Ds of, 125–129, 125t
laboratory assistant lawsuit, 142
medical assistant lawsuit, 142
nurse lawsuits, 142–143
nursing assistant lawsuit, 143
paramedic/EMS provider
lawsuit, 143
pharmacist lawsuit, 143
physical therapist, 144
physical assistant (PA) lawsuit,
144
respiratory therapist
lawsuit, 144
sterilization suits, 289
tort of, 124–129
Negligent torts. See Unintentional
torts
New Jersey, Baby M case in, 284
New York
Baby M case in, 284
falsification of medical records
case in, 213
liability case in, 143
Libby Zion case in, 178
Nixzmary’s Law, 179
Nominal damages, 129
Noncompliance issues
patients and, 99
penalties under HIPAA, 241–242
Noncompliant patient
abandonment and, 98
defined, 99
Nonfeasance, 125
Nonmalfeasance, principle of, 21
Nontherapeutic research, 266–267
Noonan, John T., 280
Norton v. Argonaut Insurance
Company, 58, 209
Notations, chart, 211–213
Notice of Privacy Practices
(NPP), 237
refusal to sign, 237t
Nuremberg Code, 259, 351–352
text of, 351–352
Nurses
code of ethics, 261, 352
negligence lawsuits against,
142–143
Nursing assistants, negligence
lawsuit against, 143
O
Obama, Barak, 271
O’Brien v. Cunard, 115
Occupational Safety and Health Act
(OSHA) of 1970, 192–193
as rights-based ethics, 10
whistleblowing and, 272
Occurrence insurance, 140
OCR. See Office of Civil Rights
(OCR)
Odomes v. Nucare Inc., 197
Office of Civil Rights (OCR), HIPAA
policies and, 246
Office of Inspector General (OIG)
false claims and, 132, 132t
immunity for charitable
organizations and, 133
violation of federal statutes
and, 133
Oken, Donald, 103
Oklahoma
consent for artificial insemination
donor in, 282
sterilization case in, 287
Older Americans Act, 160
O’Neill v. Montefiore Hospital, 41
On-the-job AIDS protection,
employees and, 101–102
Open-record laws, 217
Opioid crisis, 166–168
Opioids
CDC guidance for prescribing,
168
crisis, 166
defined, 166
list of drugs, 166
symptoms of abuse, 166
symptoms of addiction, 168
Ordinary means versus
extraordinary means, 315
Oregon, organ transplant case in, 265
Organ donation
AMA judicial council opinion
on, 260t
as bioethical issue, 262–263
organ donor card, 264
Index 377
Organ transplants
allocation of, 263–265
facts about, 266t
and Medicaid, 265–266
and Medicare, 265
and National Organ Transplant
Law of 1984, 265
Osborne v. McMasters, 133
OSHA. See Occupational Safety and
Health Act (OSHA) of 1970
OSHA Occupational Exposure
to Bloodborne Pathogens
Standards rules, 192
OTC. See Over-the-counter
medications (OTC)
Other Potentially Infectious Material
(OPIM), 192
Over-the-counter medications
(OTC)
consumer role to declare use, 116
harm from undisclosed use, 122
Ownership, of medical records, 215
P
Palliative care, 319
Paramedics. See also Emergency
medical technicians (EMT/
paramedic)
civil immunity finding, 143
occupation of, 85t
Pardazi v. Cullman Med. Ct., 187
Parens patriae authority, 110
Parenteral, defined, 192
Parrish v. Clark, 143
Partial birth abortion, 292
Partnership, 78
Passive euthanasia
defined, 311–312
Nancy Cruzan case, 312–313
pros and cons, 312
Patient dumping, 97, 195, 199
Patients
abandonment of, 97–99
accepting, AMA judicial council
opinion on, 260t
advance directives and, 106–110
alcohol and drug abuse records,
217
confidentiality and, 105, 228–253
incompetent, 99
noncompliant, 99
obligations to under HIPAA, 240
physician duty to properly
identify, 102
physician duty to respect
confidentiality and, 102
physicians and, 94–116
privacy and, 15
responsibilities of, 110–115, 111t
rights of, 104–106, 335–336, 336t
rights under HIPAA, 238t
rights under privacy standards,
242, 242t
terminally ill, 310
Patient Self-Determination Act
(PSDA), 106, 108
Patient’s Rights Act, 59
Pay equity, 16–17
Pennsylvania
liability case in, 143
stem cell legislation in, 271
People v. Gandotra, 130
People v. Scofield, 130
People v. Smithtown Gen. Hosp., 213
Per diem, Medicaid payment, 76
Permission
HIPAA-defined, 242, 243t
and HIPAA Title II, 234
Permitted incidental disclosures,
241, 241t
Perseverance, defined, 13
Persistent vegetative state (PVS)
defined, 309
Terri Schiavo case and, 314
Personal health record, 220–221
PGD. See Preimplantation genetic
diagnosis (PGD)
Pharmacists
negligence lawsuits against, 143
occupation of, 86t
Pharmacy technician code of
ethics, 14
Phenylketonuria (PKU)
genetic testing and, 296
hereditary disorder, 296t
Physical therapists (PT)
negligence lawsuit against, 144
occupation of, 86t
Physician assistants (PA)
occupation of, 86t
practicing without oversight, 144
Physician-assisted suicide (PAS)
AMA judicial council opinion
on, 260t
Oregon law right of conscience
exemptions, 87
Physician–patient relationship,
94–116
doctrine of informed consent and,
111–114
minor rights and, 110
professional practice
responsibilities and, 96–104
role of health care consumer
in, 116
standard of care and, 58–59
Physicians
duties of, 96–104, 97t
licensure of, 55–58
malpractice insurance and,
140–141
practicing medicine without
license, 57
as primary care physician
(PCP), 73
public duties of, 154–163
respondeat superior and, 62–63
responsibilities of, 96
revocation of licensure, 56–57
rights of, 95–96
standard of care and, 58–59
Pius XII (Pope), 315
Placebo group, defined, 267
Plaintiff, defined, 45
Plan ”B” contraceptive pill
Arkansas opposition to, 292
ethical issues, 292
“morning after” pill, 292
Planned Parenthood of Central
Missouri v. Danforth, 291
Planned Parenthood of Southeastern
Pennsylvania v. Casey, 291
Pleadings, 46
Pneumococcal (pneumonia) vaccine
(PCV7), 157
Polonsky v. Union Hospital, 143
Poor Sisters of St. Francis v. Catron, 144
Posthumous, 264
Postmortem, 157
PPO. See Preferred Provider
Organizations (PPOs)
Precedent, 8
Preempting, federal versus state
laws, 184
Preferred Provider Organizations
(PPOs), 74
Pregnancy
prenatal testing, 296
wrongful-life, 298–299
Pregnancy Discrimination Act of
1978, 186, 187–188
Preimplantation genetic diagnosis
(PGD), 286
Premises, physical conditions of and
liability, 136–137
Prenatal testing, 296
Preponderance of evidence,
37, 127
Prescriptions
controlled drugs and, 164–165
drug abuse, 334–335
drug safety measures, 335t
Primary care physician (PCP), 73
transfer of records and, 216
378 Index
Prince v. Commonwealth of
Massachusetts, 181
Principle of double-effect, 315
Principles of Medical Ethics
(AMA), 259
Privacy. See also Confidentiality
AIDS and, 230–231
defined, 15
denial of request for, 239
forms protecting, 237t
health care workplace and, 179
invasion of, 37t, 39
right to, 230
Privacy Act of 1974, 231
Privacy Rule
compliance with, 239
under HIPAA Title II, 233–234
implementation problems,
244–245
permitted incidental disclosures
and, 241
Privacy standards
HIPAA-defined permissions,
242, 243t
patients’ rights under, 242, 242t
Privileged communication, 105, 215
Probable cause
child abuse and, 159
discrimination and, 187
Probate court, 45
Product liability, 139
Professional corporations, 79–80
Professionalism, in health care,
177–178
Prognosis
defined, 102
physician duty to give patient,
102–103
Project Bioshield, 262
Promise to cure, 137
Prosecutor, defined, 45
Prospective payment system,
Medicaid and, 76
Protected health information (PHI)
deidentification of, 240, 240t
HIPAA Privacy Rule and, 233
subpoenaed, 240
Protective order, 160–161
Protocol, 330
Proximate cause, of negligence,
127–128
Proxy, or power of attorney, 108
Prudent person rule, 59
Public duties, of health care
professionals, 154–163
Public health records. See Vital
statistics and public health
records
Public Health Services Act, 217
Public law
administrative law
branch of, 44
classification, 36
criminal law branch of, 42–43
process of enactment, 34
relevant to medical practice, 42
Punitive damages, 129
Q
Quality assurance (QA) programs,
22–23
accreditation and, 57
Quality of life
AMA judicial council opinion on,
260t
Arthritis Measurement Scale
(AIMS), 317
defined, 316
Functional Living Index: Cancer
(FLIC), 317
measures of, 316–317
Quinby v. Morrow, 143
Quinlan, Karen Ann, 306–307
landmark case, 314
R
Radioactive waste, 170
Randomized study, informed
consent and, 267
Randomized test trials, 270
”Reasonable person standard,” 59
”Reasonable physician
standard,” 112
In re Axelrod, 160
In re Baby M, 284
Reciprocity, physician licensure
and, 56
In re Doe, 292
Registered nurse (RN). See also
Nurses
negligence lawsuits against,
142–143
occupation of, 86t
Registration
for allied health professionals,
84–85
for licensure, 56
Regulations, defined, 34
Regulation Z. See Truth in
Lending Act (Regulation Z)
of 1969
Regulatory law, 34–35
Rehabilitation Act of 1973, 189
Release of information, 215–217
under HIPAA, 234–236
Religious beliefs versus ethics, 20
Religious issues
brain death and, 310
conception and, 289, 295
euthanasia and, 312
parental neglect and, 160
patient autonomy and, 181
suicide, 321
workplace accommodations
and, 182
Reporting, medical records and, 222
In re Quinlan, 307
In re Schroeder, 159
Research
control group in, 267
nontherapeutic, 266–267
placebo group in, 267
rules relating to, 242
therapeutic, 267
Res ipsa loquitur (RIL)
doctrine of, 127–128
malpractice denial defense and,
133
Res judicata, malpractice suit
decision, 136
Respect, in workplace, 14
Respiratory therapists (RT)
negligence lawsuits against, 144
occupation of, 86t
Respite care, 318
Respondeat superior
altered medical records and, 138
borrowed servant doctrine and,
135
civil liability cases and, 136, 139
doctrine of, 62–63
employer-employee
responsibilities and, 62–63,
122
malpractice insurance and, 140
role of supervisor concerning
liability, 139
scope of practice and, 62–63
Responsibility, defined, 14
Restraining (protective) order,
160–161
Retailing, of drugs, 165
Retinoblastoma
genetic testing and, 296
hereditary disorder, 296t
Revocation, of licensure, 56–57, 258
Rider, 140
Rights
of minors, 110
of patients, 104–106
of physicians, 95–96
Rights-based ethics, 10, 12t
Right to die legislation, 315–316
Right-to-know laws, 192
Index 379
Right to refuse treatment,
315–316
Rigor mortis, 307
RIL. See Res ipsa loquitur (RIL)
Risk, assumption of, 134
Risk management, 64–65
falls and, 65
medication errors and, 65
“Seven Rights” of medicine
administration, 65
Three Checks and, 65
Triple Check method and, 65
Robotics
ethics and, 336
medical applications of, 336
surgery and, 336
Rodgers v. St. Mary’s Hospital, 218
Roe v. Wade, 286
challenges to, 291–292
landmark case, 290–292
Nebraska challenge to, 291
neglect of fetus and, 292
Pennsylvania challenge to, 291
right of conscience and, 87
right to privacy and, 39
Utah challenge to, 291
Rowland v. Christian, 137
Rust v. Sullivan, 291
S
Safe Haven Laws, 299
Safety, as malpractice prevention,
146–147
Safety Data Sheet (MSDS), 193
Safety data sheet (SDS), 170
Saint Christopher’s Hospice,
London, 318
Sanctions, 241
Sanctity of life, defined, 14
Satler v. Larsen, 159
Saunders, Cicely, 318
Schiavo, Terri, 314
Scope of practice, 63–64
Selective reduction, of embryos,
285–286
Settlement, in lawsuit, 138
Seven-step decision model, 18
Sexual harassment, 16
Sexually transmitted diseases (STD),
duty to report, 157
Sickle cell anemia, 286
hereditary disorder, 296t
Simkins v. Moses H. Cone Hospital, 187
Skinner v. Oklahoma, 287
Slander, 38
Smith v. Cote, 298
Social Security Act of 1935,
195–196
Social utility method of
allocation, 264
Sole proprietorship, 78
Solid Waste Disposal Act, 272
Solo practice, 78
South Carolina, liability case in, 142
Specialties, surgical, 82t–83t
Specialties, medical, 82t–83t
Spontaneous abortion, 290
Spousal abuse, 160–161
Standard of care, 58–59
Standards of proof, 48
Standing medical orders (SMOs),
fraud scheme and, 131
Stare decisis, 35
Starks v. Director of Div. of
Employment Section, 197
State Board of Medical
Examiners, 54
State Board of Registration, 54
State court system, 45
State Dep’t. of Human Services v.
Northern, 316
State open-record laws, 217
State’s preemption, 239
State v. Fierro, 310
Statute of limitations, 60
malpractice suits and, 135–136
past-due accounts and, 202
retaining records and, 217
Statutes
defined, 34
federal health care, 132–133
wrongful death, 129
Statutory law, 34–35
Stem cell research, 271–272
as bioethical issue, 262
from embryos, 271–272
federal funding, 271
harvesting of stem cells and, 272
slippery slope, 272
Stem cells
defined, 271
harvesting, 272
research, 271–272
Stereotyping, 179
Sterilization, 287–289
consent for, 287–288
defined, 287
ethical issues, 289
eugenic (involuntary), 288
negligence suits related to, 289
therapeutic, 287, 288
voluntary, 287
St. John’s Reg. Health Center v.
American Cas. Co., 139
Storage, of medical records, 217–218
Strict liability, 139
Subpoena, 45–46
of medical records, 208
Subpoena duces tecum, 46, 222–223
Substance abuse, 165–168
opioid crisis and, 166–168
Substitute judgment rule, 320
Suicide, 321–324
among children, age factor of, 323
among older adults, 323
antidepressants, 322
gender risk of, 323
nonfatal suicide attempts, risks
for, 323
prevention, 323–324
survivor’s guilt, 324
Summary judgment, 46
Surgical specialties, 82t–83t
Surrogate
advance directives and, 320
motherhood, 283–285
Surrogate motherhood, ethical
considerations with, 283–285
Survivor’s guilt, 324
Suspension, of licensure, 56–57
Swanson v. St. John’s Lutheran
Hospital, 86
Sympathy, in workplace, 15
T
Tarasoff v. Regents of the University of
California, 104
Tay-Sachs disease
genetic testing and, 296
hereditary disorder, 296t
Technology technicians, 249
Teeters v. Currey, 60
Telemedicine, 248–249
Teleological theory, 9–10
Tennessee
ownership of embryos case, 283
right to die legislation and,
315–316
Therapeutic research, 267
Therapeutic sterilization, 287, 288
Third-party payers, 73
Thompson, James A., 271
Thompson v. Brent, 58, 62
Thor v. Boska, 214
Timeliness of documentation, 213
Tissue donation, as bioethical issue,
262–263
Title VII of the Civil Rights Act of
1964, 185–187
Tolerance, defined, 14
Tolling, statute of limitations and, 60
Tools, Robert, 325
Tort, defined, 37
Tortfeaser, 125
380 Index
Tort law, 37–40
abandonment of patients,
97–99
assault and health care,
37–38, 37t
battery and health care, 37t, 38
defamation of character and
health care, 37t, 38
embezzlement and, 39
false imprisonment and health
care, 37t, 38
fraud and health care, 37t, 38–39
intentional torts, 37, 37t
invasion of privacy and health
care, 37t, 39
malpractice and, 39–40
in medical practice, 37
negligence and, 39, 124–129
negligent torts, 39–40, 40t
standard of care and, 39
unintentional torts, 39–40, 40t
Tort reform, 145
Transplant rationing, ethics of,
263–266
Treatment (medical)
biomedical research debates and,
268–269
right to refuse, 315–316
withdrawing
life-sustaining, 311
withholding
life-sustaining, 311
Treatment, payment, and health care
operations (TPO), 238
Trial process, 45–49
appellate court system, 49
burden of proof, 47
civil trial procedure, 47
closing arguments, 47
deposition, 45–46
discovery, 45
examination of witnesses,
46–47, 48
grand jury and, 45
jury selection, 46
opening statements, 46
pleadings, 46
presentation of evidence, 46–47
procedure, 45–48
settling out of court, 46
standards of proof, 48
subpoena, 45–46
subpoena duces tecum, 46
summary judgment, 46
testifying in court, 48
Truth in Lending Act (Regulation Z)
of 1969, 41, 200
Truth telling, 102–104
Tubal ligation. See Sterilization
Tugg v. Towney, 189
Tuskegee syphilis research study,
case of, 256–257, 270
U
UDDA. See Uniform Determination
of Death Act (UDDA)
Unborn Victims of Violence
Act, 292
Undue hardship, 189
Unemployment
compensation, 197
Uniform Anatomical Gift Act
advance directives and, 320
defined, 108
fetal harvesting and, 297
Uniform Business Records
Act, 138
Uniform Determination of Death
Act (UDDA), 310
Unintentional torts, 39–40, 40t
malpractice and, 39–40
negligence and, 39
United Network for Organ Sharing
(UNOS), 262
United States v. Busse, Dey, Lupuiescu,
and Failla, 131
United States v. NME Psychiatric
Hospitals, 96
UNOS. See United Network for
Organ Sharing (UNOS)
U.S. Government
branches of, 32, 32
checks and balances,
system of, 32
U.S. Medical Licensing Examination
(USMLE), 55
USMLE. See U.S. Medical
Licensing Examination
(USMLE)
Utilitarianism
defined, 9
as ethical theory, 9–10, 12t
V
Vaccines and Toxoids
Hepatitis A vaccine, 157
Hepatitis B vaccine, 192
H. influenzae type B vaccine
(HiB), 157
mandated by law, 157, 157t
National Childhood Vaccine
Injury Act of 1986, 157
Pneumococcal (pneumonia)
vaccine (PCV7), 157
Varicella (chicken pox)
vaccine, 157
Vesting, pension plans and, 198
Viable, fetus, 290
Viatical settlements, 319–320
Virtue-based ethics, 12, 12t
Vision disorders, 342–344
cataracts and, 343
color vision deficiency, 343
communication and, 344
diabetic retinopathy, 342
glaucoma, 342–343
macular degeneration
and, 343
nystagmus, 343
retinoblastoma, 343
Visual impairment, 341–344. See also
Vision disorders
Vital statistics and public health
records
birth certificates, 155
completing forms, 155t
death certificates, 155–157
defined, 154–163
In vitro fertilization (IVF), 283
Voice recognition technology,
247–248
Voluntary sterilization, 287
of unwed minors, 287
W
Waive, defined, 46
Walsh, Patrick, 268
Weaver v. Ward, 35
Whistleblowing, 199, 272
Whitehead, Mary Beth, 284
Williams v. Summit Psychiatric Ctrs., 38
Willowbrook State Hospital, case of,
279–280
Wireless local area networks
(WLANs), 247
Wisconsin, improper
disclosure in, 222
Withdrawing life-sustaining
treatment, 311
Withholding life-sustaining
treatment, 311
Witness, expert, 48
WLAN. See Wireless local area
networks (WLANs)
Womble, Larry, 288
Index 381
Woolfolk v. Duncan, 189
Work, defined, 14
Workers’ Compensation Act,
197–198
Workmen’s Compensation Boards,
and administrative law, 44
Workplace
compensation and benefits
regulations, 195–199
consumer protection and
collection practices, 199–202
cultural considerations, 179–181
discrimination in, 178
employee health and safety in,
192–195
equal employment opportunity
and employment
discrimination, 185–187
federal regulations affecting
professional in, 184–191
hiring practices, 182–184
interview questions in, 183
privacy and, 179
professionalism in, 177–178
religious considerations in,
181–182
Wrongful death statutes, 129
Wrongful discharge, 183
employment-at-will and, 185
employment lawsuits, 193
Wrongful-life suits, 298–299
wrongful conception/pregnancy,
299
wrongful life, 298
Y
Yale-New Haven Children’s
Hospital, 268
Z
Zatarain v. WDSU-Television,
Inc., 188
Zion, Libby, 178
Zoterell v. Repp, 114
Zucker v. Axelrod, 144
A-1
Achoo.com
www.achoo.com
Agency for Healthcare Research and Quality
www.ahrq.gov/news
AIDS Pathfinder
www.nnlm.nlm.nih.gov/pnr/etc/aidspath.html
AMA Health Insight
www.ama-assn.org/consumer/hfocus.htm
American Academy of Allergy, Asthma, and Immunology
www.aaaai.org
American Academy of Dermatology
www.aad.org
American Academy of Nutrition
www.nutritioneducation.com
American Academy of Pain Management
www.aapainmanage.org
American Association for Respiratory Care
www.aarc.org
American Association of Medical Assistants
www.aama-ntl.org
American Association of Retired People
www.aarp.org
American Civil Liberties Union
www.aclu.org
American College of Cardiology
www.acc.org
American College of Chest Physicians
www.chestnet.org
American College of Gastroenterology
www.acg.gi.org
American College of Obstetrics and Gynecology
www.acog.org
American College of Rheumatology
www.rheumatology.org
American Dental Association
www.ada.org
American Diabetes Association
www.diabetes.org
American Health Information Management Association
www.ahima.org
American Health Lawyers Association
www.healthlawyers.org
American Heart Association National Center
www.americanheart.org
American Hospital Association
www.aha.org
American Hospital Publishing Inc.
www.aha.org/healthforum/
American Lung Association
www.lungusa.org
American Medical Association
www.ama-assn.org
American Medical Informatics Association
www.amia.org
American Medical Technology Association
www.amta.com
American Nurses Association
www.nursingworld.org/readroom
American Psychiatric Association
www.psych.org
American Society of Law, Medicine, and Ethics
www.aslme.org
American Tort Reform Association
www.atra.org
Health Care Websites
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Arthritis Foundation
www.arthritis.org
Blue Cross and Blue Shield Association
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CancerNet
www.nci.nih.gov.hpage/cis.htm
Center for Medical Ethics and Health Policy
www.bcm.tmc.edu/ethics
Centers for Disease Control and Prevention (CDC)
www.cdc.gov
Certified Doctor
www.certifieddoctor.org/verify.html
Cleveland Clinic Foundation
www.ccf.org
Clinical Trials of the Government
www.clinicaltrials.gov
Communicable Disease Center: “Nationally Notifiable
Infectious Diseases, 2009.”
www.cdc.gov
Consumers Union: Review of drugs and their prices
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Donate Life
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Drug Enforcement Administration
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DynoMed Patient Information
www.dynomed.com/encyclopedia/encyclopedia/cfm
Equal Employment Opportunity Commission
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Findlaw
www.Findlaw.com
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Harvard Medical School’s Consumer Health Information
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Health Check
www.healthcheck.com
Health Insurance Portability and Accountability Act
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www.hhs.gov/ocr/hipaa
Healthfinder
www.healthfinder.gov
HealthIdeas
www.healthideas.com
Healthy Lifestyle
www.yourhealth.com
Hepatitis Foundation International
www.hepfi.org
HIPAA Advisory
www.hipaadvisory.com
Hospice Foundation of America
www.hospicefoundation.org
Hospice Net
www.hospicenet.org
Institute for Healthcare Improvement
www.ihi.org
Johns Hopkins Medicine
www.hopkinsmedicine.org
Joint Commission on Accreditation of Healthcare
Organizations
www.jcaho.org
Joint Commission on Accreditation of Healthcare
Organizations (quality check of hospitals)
www.qualitycheck.org
Lung Diseases
www.lungs.org
Mayo Clinic
www.mayo.edu
Mayo Clinic Health Information
www.MayoClinic.com
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http://www.arthritis.org
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http://www.bcm.tmc.edu/ethics
http://www.cdc.gov
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http://www.eeoc.gov
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Health Care Websites A-3
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www.mayohealth.org
Meaningfuluse Act
www.meaningfuluse.cdc
Med Net
www.mednet.com
MedHelp International
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Medical Consumer Guide for Dental Care
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Medical Encyclopedia (provided by University of
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Medical Encyclopedia: Reportable Diseases
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Medical Exploring
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Medical Journals
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Medical Yellow Pages on the Web
www.medsite.com
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www.medicare.gov
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www.medicarerights.org
Medication Information
www.rxlist.com
Medline Plus
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MedNexus
www.mednexus.com
Medscape
www.medscape.com
National Association for Healthcare Quality
www.nahq.org
National Association of Managed Care Physicians
www.namcp.com
National Bioethics Advisory Commission
www.bioethics.gov
National Campaign for Hearing Health
www.hearinghealth.net
National Committee for Quality Assurance
www.ncqa.org
National Heart, Lung, and Blood Institute
www.nhlbi.nih.gov/
National Hospice and Palliative Care Organizations
www.nhpco.org
National Institute of Mental Health
www.nimh.nih.gov
National Institute of Senior Health—smart use of drugs
www.nihseniorhealth.gov
National Institutes of Health
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National Library of Medicine—information about
marketed drugs
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National Mental Health Association
www.nmha.org
National Organ and Tissue Donation Initiative
www.organdonor.gov
National Osteoporosis Foundation
www.nof.org
National Right to Life
www.nrlc.org/abortion
Occupational Safety and Health Administration (OSHA)
www.osha.gov
Organ Transplants
www.organdonor.gov
Physician’s News Digest
www.physiciansnews.com/law
Planned Parenthood Federation of America Inc.
www.plannedparenthood.org
Social Security
www.socialsecurity.gov
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http://www.medsite.com
http://www.medicare.gov
http://www.rxlist.com
http://www.nlm.nih.gov/medlineplus
http://www.mednexus.com
http://www.medscape.com
http://www.nahq.org
http://www.namcp.com
http://www.bioethics.gov
http://www.hearinghealth.net
Health Care Accreditation, Health Plan Accreditation Organization – NCQA
http://www.nhlbi.nih.gov/
http://www.nimh.nih.gov
http://www.nihseniorhealth.gov
http://www.nih.gov
http://www.dailymed.nlm.gov
http://www.nmha.org
http://www.organdonor.gov
http://www.nof.org
http://www.osha.gov
http://www.organdonor.gov
http://www.physiciansnews.com/law
http://www.plannedparenthood.org
http://www.socialsecurity.gov
A-4 Health Care Websites
Stanford University’s Health Library
www.healthlibrary.stanford.edu
Statute of Limitations by State
www.edgarsny.com/resources/statute-limitations
United Network for Organ Sharing
www.unos.org
University of Iowa Healthcare’s Virtual Hospital
www.vh.org
U.S. Department of Health and Human Services
www.hhs.gov
U.S. Department of Labor
www.dol.gov
U.S. House of Representatives
www.house.gov
U.S. National Library of Medicine
www.nlm.nih.gov
U.S. Senate
www.senate.gov
WebMD
www.my.webmd.com
White House
www.whitehouse.gov
http://www.healthlibrary.stanford.edu
http://www.edgarsny.com/resources/statute-limitations
http://www.vh.org
http://www.hhs.gov
http://www.dol.gov
http://www.house.gov
http://www.nlm.nih.gov
http://www.senate.gov
http://www.my.webmd.com
http://www.whitehouse.gov
Cover
Brief Contents
Title Page
Copyright Page
Contents
Preface
A Letter to the Student from the Author
How to Interpret Case Citations
About the Author
Reviewers
1 Introduction to Medical Law, Ethics, and Bioethics
Why Study Law, Ethics, and Bioethics?
Medical Law
Ethics
Models for Examining Ethical Dilemmas
What Ethics is Not
Bioethics
The Role of Ethics Committees
Quality Assurance Programs
Medical Etiquette
Part 1: The Legal Environment
2 The Legal System
The Legal System
Sources of Law
Classification of Laws
The Court Systems
The Trial Process
3 Essentials of the Legal System for Health Care Professionals
Medical Practice Acts
Licensure of the Physician
Standard of Care
Confidentiality
Statute of Limitations
Good Samaritan Laws
Respondeat Superior
Scope of Practice
Risk Management
4 Working in Today’s Health Care Environment
Today’s Health Care Environment
Types of Medical Practice
The Ethics of Fee Splitting
Medical Specialty Boards
Health Care Professionals and Allied Health Care Professionals
The Delegation of Duties
Part 2: The Health Care Environment
5 The Physician–Patient Relationship
Physician’s Rights
Physician’s Responsibilities
Professional Practice Responsibilities
Patient’s Rights
Advance Directives
Rights of Minors
Patient’s Responsibilities
Role of the Health Care Consumer
6 Professional Liability and Medical Malpractice
Professional Negligence and Medical Malpractice
The Tort of Negligence
Fraud
Office of the Inspector General
Defense to Malpractice Suits
Professional Liability
Alternative Dispute Resolution
Liability of Other Health Professionals
Tort Reform
Malpractice Prevention
7 Public Duties of the Health Care Professional
Public Health Records and Vital Statistics
Controlled Substances Act and Regulations
Protection for the Employee and the Environment
8 Workplace Law and Ethics
Professionalism in the Workplace
Discrimination in the Workplace
Privacy and the Workplace
Cultural Considerations
Religious Considerations
Effective Hiring Practices
Legal and Illegal Interview Questions
Federal Regulations Affecting Professionals
Equal Employment Opportunity and Employment Discrimination
Employee Health and Safety
Compensation and Benefits Regulations
Consumer Protection and Collection Practices
9 The Medical Record
Purpose of the Medical Record
Contents of the Medical Record
Ownership of the Medical Record
Confidentiality and the Medical Record
Retention and Storage of Medical Records
Electronic Health Records
Reporting and Disclosure Requirements
Use of the Medical Record in Court
10 Patient Confidentiality and HIPAA
Confidentiality
Privacy Act of 1974, Amended in 1988
Health Insurance Portability and Accountability Act of 1996, Updated in 2013
Ethical Concerns with Information Technology (Informatics)
Part 3: Medical Ethics
11 Ethical and Bioethical Issues in Medicine
Early History
Ethical Standards and Behavior
Codes of Ethics
Codes of Ethics for Other Medical Professionals
Bioethical Issues
Ethical Issues and Personal Choice
The Ethics of Biomedical Research
12 Ethical Issues Relating to Life
Fetal Development
Assisted or Artificial Conception
Contraception
Sterilization
Abortion
Genetic Counseling and Testing
Wrongful‐Life Suits
“Do the Right Thing”
13 Death and Dying
The Dying Process
Legal Definition of Death
Stages of Dying
Quality‐Of‐Life Issues
Use of Medications
Hospice Care
Palliative Care
Viatical Settlements
Advance Directives
Choices in Life and Death
14 Trends in Health Care
Problems in the Current Health Care System
New Advances and Improvement in Health Care
Health Care Trends and Reform
The Ethics of Care
American Deaf Culture
Blindness and Visual Impairment
Life Issues of the Elderly
Allocation of Scarce Time and Resources
APPENDIX A: Codes of Ethics
APPENDIX B: Case Citations
Glossary
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
Y
Z
Health Care Websites
FYI….. in APA format, certain parts of a reference are italicized to distinguish titles and sources clearly. Below are the areas to italicize in APA-style references:
1. Books:
– Italicize the title of the book.
Example:
Fremgen, B. F. (2019). Medical law and ethics (6th ed.). Pearson.
2. Journal Articles:
– Italicize the name of the journal and the volume number.
Example:
Aggarwal, R., Patel, V., & Lin, J. (2022). Healthcare fraud and its consequences. Journal of Health Economics, 75(1), 45-59. https://doi.org/10.xxxx/j.jhe.2022.xx.xxxx
3. Webpages:
– In general, webpages do not have italicized elements, but if referencing a specific report or stand-alone publication available online, the title may be italicized.
Example:
U.S. Department of Justice. (2023, September 30). Cigna Group to pay $172 million to resolve False Claims Act allegations. United States Department of Justice. https://www.justice.gov/opa/pr/cigna-group-pay-172-million-resolve-false-claims-act-allegations
In summary, titles of books, reports are italicized, as well as journal names and volume numbers, to provide clarity and structure to APA citations. For further reference, you can consult the Publication Manual of the American Psychological Association (7th ed.) or visit the official APA Style website:
https://apastyle.apa.org
.
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